Law's Dream of a Common Knowledge (The Cultural Lives of Law)

Law’s Dream of a Common Knowledge

Austin Sarat series editor Law’s Dream of a Common Knowledge by Mariana Valverde Emblems of Pluralism: Cultural Differences and the State by Carol Weisbrod

Law’s Dream of a Common Knowledge ✦ Mariana Valverde

princeton university press princeton and oxford

Copyright  2003 by Princeton University Press Published by Princeton University Press, 41 William Street, Princeton, New Jersey 08540 In the United Kingdom: Princeton University Press, 3 Market Place, Woodstock, Oxfordshire OX20 1SY All Rights Reserved L i b r a ry o f C o n g r e s s C ata l o g i n g - i n - P u b l i c at i o n D ata Valverde, Mariana, 1955– Law’s dream of a common knowledge / Mariana Valverde. p.

cm.

Includes bibliographical references and index. ISBN 0-691-08698-2 (cloth : alk. paper) 1. Law—Social aspects. of.

2. Law—Psychology.

3. Knowledge, Sociology

I. Title.

K380 .V35 2003 340.11—dc21

2002030720

British Library Cataloging-in-Publication Data is available This book has been composed in Sabon and Futura Printed on acid-free paper. ⬁ www.pupress.princeton.edu Printed in the United States of America 10

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FOR MAGGI

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Contents Acknowledgments CHAPTER ONE

ix Introduction

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The Art of Drawing the Line: Judicial Knowledges of Community Morality and Community Harms 28

CHAPTER TWO

CHAPTER THREE

The Forensic Gaze: Law’s Search for

Moral Clues 54 CHAPTER FOUR

Beyond Sexuality? 86

“The Lifestyle That Fits the Doctrine of Sexual Orientation” 112

CHAPTER FIVE

Police Science, British Style: Pub Licensing and Knowledges of Urban Disorder 141

CHAPTER SIX

CHAPTER SEVEN “Common Knowledge Must Enter the Equation Somewhere”: Knowledge as Responsibility 167 CHAPTER EIGHT

Indian Style of Life” CHAPTER NINE

Bibliography 229 Index

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Racial Masquerades: White Inquiries into “the 193 Conclusion 222

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Acknowledgments ✦ Contrary to the heroic myth of the scholar laboring in a garret, I have found that the more books I write, the more I need and the more I appreciate the contributions made by other people to what is then published under my name. While naming people in acknowledgments is always hazardous, nevertheless it is necessary to try to thank some of those whose willingness to engage with my work was an absolutely necessary working condition. Invaluable research assistance was provided by Dawn Moore for several chapters and by Maureen Simpkins and Paula Dupuis for chapter 8. Bibliographic and editorial assistance at the final stage was cheerfully and intelligently provided by Pauline Rosenbaum and Cristina Gelsomini. A three-year grant from the Social Sciences and Humanities Research Council made it possible to obtain their assistance, as well as present papers at conferences and pay for sundry lowly but necessary things. Further material as well as intellectual support was generously provided, as has been the case for almost a decade, by colleagues, staff, and students at the Centre of Criminology, University of Toronto. A research contract with the Law Commission of Canada on “democracy in governance” allowed me to think through some of the larger theoretical questions and learn a great deal about legal theory, as well as helping me to think about the policy implications of theoretical debates. Alan Hunt, Tom Osborne, and Austin Sarat gave me detailed input on the original book proposal, for which I am very grateful. Some friends and colleagues were later recruited to provide expert advice on particular chapters. I did not always take their advice, but their generosity allowed me to make incursions into new fields. My heartfelt thanks in this regard to Connie Backhouse, Karen Busby, David Garland, Janet Halley, Jennifer Henderson, Alan Hunt, Jim Phillips, and Barbara Sullivan. Needless to say, remaining mistakes and obscurities are my responsibility. Versions of chapter 3 were presented at the Law and Society meetings in Budapest, at the Columbia University Law School, and at the University of Toronto Law School; a version of chapter 6 was presented at the American Bar Foundation in Chicago. Comments from people present at those talks were extremely helpful. Some parts of chapter 2 appeared in a different form in “The harms of sex and the risks of breasts” (Social and Legal Studies 8, no. 2 [1999]), and the refereeing process there was also very helpful. Similarly, a small part of chapter 6 and a portion

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of chapter 7 are revised versions of material published in Ron Levi and Mariana Valverde, “Knowledge on tap,” Law and Social Inquiry 26, no. 4 (2001). Ongoing conversations and exchanges of papers, ideas, references, and jokes with some wonderful friends made writing this book rewarding and enjoyable—and made me realize the wisdom of Bruno Latour’s insight that all intellectual creations are but the provisional product of a large network of actors. The network-actors—who, I hasten to add, may not always approve of the product in question—include Tony Doob, Peter Goodrich, Kelly Hannah-Moffat, Joe Hermer, Engin Isin, Ron Levi, Dawn Moore, Paula Maurutto, Nikolas Rose, Evelyn Ruppert, and Pat O’Malley. Ron Levi played a crucial role: I dared to venture into new areas of legal theory and legal analysis only because I knew I could count on his help and guidance. That he has become a colleague, de jure as well as de facto, during the time this book was written, is a great pleasure. Pat O’Malley also provided essential feedback and went beyond the call of friendship’s duty in reading the whole manuscript at the last minute on short notice and mercifully making few suggestions for revisions. Austin Sarat, editor of the Cultural Lives of Law series, was a model editor: always encouraging, sometimes challenging, and never micromanaging. I knew I could count on him for instant and reliable feedback but still continue to disagree with him on some things. Chapter 1 owes its existence to him, since without his stimulus I would never have worked so hard at trying to explain just what I do—and why I don’t like the word “culture.” Finally, thanks of a different sort are due to my partner Maggi and our children Nicky and Ming. They inconvenienced themselves with good cheer over a long period so that I could write this book. More important, they give me not only love and stability but also many insights into the questions of justice and injustice that motivate all sociolegal scholarship.

Law’s Dream of a Common Knowledge

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CHAPTER ONE

Introduction ✦ If knowledge is power, so, too, are power relations also knowledge relations, truth relations. While theology has often served as a public arena for the playing out of disputes about how and where to seek the truth, in the present day, and particularly in largely secular multicultural societies, law has become a privileged site in which people either seek the truth themselves or comment on the truth-seeking efforts of others. This dimension of law is not always acknowledged. Law students are told, for example, that law is only interested in particular truths—who committed this crime, how the liability for this accident ought to be allocated—and are enjoined not to waste time on the philosophical or scientific frameworks for truth seeking that characterize more academic enterprises. But in courts of law, as in murder mysteries, looking for the local truth about an event usually involves both participants and spectators in theorizing about general truths, and even about whether truth can ever be found. Just as mystery writers use the pursuit of particular truths as a vehicle to propound general truths about the nature of evil, sex, or our “mean streets,” so, too, do law’s personnel, from police officers to high court judges, often make explicit and implicit assumptions about truth as such while going about their daily business. This is undoubtedly a reason for the popularity of law- and justice-oriented entertainment: spectators as well as participants use legal arenas to engage in both “a daily moral workout” (Katz 1987) and a daily truth workout. Law is usually examined by critical legal studies and socio-legal scholarship as a key site for the reproduction and contestation of various forms of power relations. But if power works through knowledge,1 it should prove useful to undertake an examination of some legal events and processes that highlights the knowledge dimension—the constitution, contestation, and circulation of truth in law or in respect to law. Knowledge production can, of course, be studied in a number of 1 Michel Foucault drew a distinction between brute force and “power,” stating that “force” is one-sided violence exercised simply for the sake of control, whereas power seeks the acquiescence of the ruled and to that extent always leaves some room for counterstrategies (Foucault 1988, 84). But Foucault’s work also supports the Nietzschean view used here, namely, that, unlike sheer force, power works through truth claims and justifies itself with knowledge.

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ways and at many sites: anthropological studies of how ordinary people think about law and deal with law, for example, are crucial contributions to our understanding of the formation of knowledges2 about justice in particular situations. While informed and inspired by legal anthropology, this book does not study what ordinary citizens think about either law or justice except indirectly. It is thus closer to the sociology of law than to legal anthropology, since its main concern is the formation and the contestation, within legal arenas, of a certain set of truths— about vice and virtue, normality and indecency, urban order and disorder—in and through the work of state officials, lawyers, and judges. But it is more a sociology of law in action than a sociology of law in the books: it pays just as much attention to how morality-squad officers testify about indecent performances as to what courts have said about indecency, and devotes more space to how liquor inspectors and licensing officials make determinations of drunkenness than to the case law on what counts as evidence of intoxication. The quest for moral and social truth that is the moving force and the objective of lowly legal actors such as police detectives and municipal inspectors—a quest that like all other discovery efforts is usually more of a production or invention than it is the discovery of a previously existing inert object—has rarely engaged the attention of those who study the formation of knowledges. Sociological studies of knowledge practices have begun to examine legal arenas, especially courtrooms, with much success; but they have focused their attention almost exclusively on scientific knowledges. They have rarely examined the nonexpert knowledges of right and wrong, order and disorder, and virtue and vice that are the everyday currency of legal discussions and adjudications.3 Similarly, studies pursued by Michel Foucault and by the many scholars now using some of Foucault’s insights and methods are much more informative about the development and use of what I call “high-status” Scholars influenced by Michel Foucault talk about “knowledges,” even though the dictionary does not recognize a plural for “knowledge,” in order to stress that European scientific knowledge is but one of many knowledges. Similarly, in contrast to Max Weber’s famous analysis of “rationalization,” Foucault and his followers speak about competing “rationalities.” 3 Sheila Jasanoff, a leading student of scientific knowledges in law, shows that even in “toxic tort” lawsuits, in which science is unusually influential, courts tend to favor the evidence of general practitioners who have seen the plaintiff to the more causally relevant evidence of epidemiologists (Jasanoff 1995). This contradicts the claim of some law-andculture theorists that statistical knowledges and logics have become dominant in law (e.g., Murphy 1997). Another recent study showing that legally successful knowledges are not always the most scientific is Simon Cole’s history of forensic identification techniques (Cole 2001). 2

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knowledges—psychiatry, psychology, clinical medicine, statistics, epidemiology—than they are about the low-status knowledges that are used not only by ordinary people in their “popular” pursuits but also by countless state and private-sector employees in the pursuit of a variety of regulatory and administrative tasks. Understanding how classifying people and objects by means of science, medicine, sociology, or economics has made certain forms of modern governance possible is, of course, hugely important, and without the prior production of both Foucaultian analyses and other work in the history of science this book would not have been possible. Nevertheless, not all fields of human endeavor have been successfully “medicalized” or otherwise monopolized by professionals wielding expert knowledges. This is more than an empirical point. This book suggests not only that expert domination is limited but also, more fundamentally, that it would be more useful for socio-legal scholars to abandon the undirectional models provided by “professionalization” and “medicalization” theses in favor of more dynamic and flexible frameworks that do not assume there is a single logic that can be studied across fields and across situations, either to prove its dominance or to show that it fails to dominate. There are many, heterogeneous, unsystematizable reasons why both popular and hybrid knowledges continue to flourish in many fields. In some cases these knowledges directly compete with science and expertise, successfully or unsuccessfully; but in other situations there is no overt contest, only various patterns of peaceful coexistence. The research done for this book, in other words, does not support the thesis that law is becoming increasingly technical or scientific: but neither does it support the opposite view (expressed through such offhand remarks as “judges cannot be replaced by computers, you know”) that there is some essence of law as such that makes it impervious to scientific knowledges. The epistemological workings of law, I suggest, cannot be reduced to any one general thesis. Different fields and situations exhibit different logics. Since among the variety of knowledge processes that exist in law, the one that has received the most attention is the process by which scientific knowledges have been deployed for legal purposes, it seemed useful to focus not on science but rather on the circulation of nonscientific knowledges in legal contexts. And, not coincidentally, the fields of law with which I was already familiar from previous work (sexual regulation, the legal regulation of sexual speech, the legal and therapeutic regulation of alcohol) turned out, when looked at from the new point of view of knowledge production, to be fields or sites in which expert knowledges of any kind continue to be remarkably scarce. I returned then to these fields, asking new questions and doing new research. I also attempted to explore, however tentatively, other areas of law within

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which questions about vice and virtue, order and disorder, are front and center. Thus the study of how people—especially officials—come to know what is vice and what is disorder, and how they explain and justify their knowledge to legal authorities, became the focus of this book. How various intellectual tools that are available were found to be useful or not so useful for the task just named is a question that needs to be addressed in any introduction, even one eschewing traditional discussions of “methods” and “theory.” This I will do in the second half of the introduction. First, however, the general question we opened with— law’s will to truth—needs to be addressed more directly. L AW ’ S W I L L T O T R U T H

Empirical studies of the workings of law in the everyday contexts of minor lawsuits, traffic tickets, and petty crime (e.g., Merry 1990; Sarat and Kearns 1993; Ewick and Silbey 1998) suggest that while truth seeking is an important dimension of law, this is not always or even most of the time law’s overriding passion. In contrast to the drama of highprofile trials, minor crimes are often plea-bargained; people involved in minor lawsuits often decide that it is not worth losing a day’s pay to have one’s day in court; trials are postponed because crucial witnesses fail to show up; and so on. Critical scholars—sociologists, legal anthropologists, and others—have challenged law’s official will to truth by empirically studying the sordid and careless realities of everyday “justice.” Their work has been extremely important to counter the dominant images of law’s relation to Truth and Justice. However, whatever its public image, law as an institution makes no bones about the fact that legal decisions—even decisions as weighty as imprisoning, deporting, or executing someone—have to be taken without full knowledge.4 Investigations are carried out and evidence is presented: but the investigation is often cursory or biased, the evidence ambiguous or insufficient, and the reasoning used to generate the decision peculiar or prejudiced. These problems are compounded by the fact that neither the facts nor the reasoning are as open to public scrutiny as the ideals of AngloSaxon justice suggest: many people charged with minor crimes plead guilty without proper legal advice, civil cases are more often than not settled out of court without a full inquiry, and administrative tribunals are habitually invoked as threats rather than being used to adjudicate. My thanks to my colleague, Audrey Macklin, a former immigration judge, for sharing her anxieties about having to make refugee determination decisions in conditions of “radical uncertainty” (personal communication, July 2001). 4

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The legal system’s halfhearted commitment to truth seeking nevertheless appears to enjoy tacit approval. Most of the time, the law’s methods for accumulating, evaluating, and operationalizing knowledge are taken for granted by both outsiders and insiders. Scholars professionally devoted to the study of law do pay attention to law’s methods, but the majority of such discussions focus on particular courts’ interpretation of particular facts and rules. Those scholars who pursue more systematic inquiries, asking questions that go beyond pointing the finger at this or that judge or this or that statute, usually take the law of evidence as their object. Their studies usually begin with such questions as whether a particular means of obtaining information makes the information legally inadmissible. In general, their work is concerned with how knowledge ought to be deployed. This is a fundamental inquiry for legal scholars: as far back as the Enlightenment’s critique of heresy trials, legal thought and law reform have been centrally concerned with the close connection between the misuse of facts in law and the perpetration and authorization of gross injustices. The use and misuse of information in the legal form of evidence has been and will continue to be a major issue for those who care about justice. But what if we decide to take an interest in the workings of law not in order to move it closer to justice or to make it more rational or both but, less normatively, in order to study the mechanisms by which law, rather than simply using facts in the form of “evidence,” also produces knowledge? The distinction drawn here is not a sharp one: as studies in the sociology of knowledge have amply demonstrated, there is no real line separating knowledge production from the dissemination and practical utilization of knowledge. Bruno Latour’s influential studies of scientific laboratories have shown that even at the moment when a scientific fact is first produced—when Pasteur discovered penicillin, for example—the knowledge that the scientist thinks is being born ex nihilo is actually one link in a long chain of “actors,” actors that include machinery, inscription devices such as charts, and live people, as well as theories and concepts.5 Along similar lines, feminist and Foucaultian studies of sexuality have shown that “sex”—something traditionally regarded as a brute presocial fact—is itself produced by the very processes that claim to discover and study it. The same sociology-of-knowledge analysis can be applied to law; that is, the parties to a legal case can be said to constitute knowledge in the very process of “using” it, while courts and tribunals can be usefully regarded as further constituting knowledge in the process of evaluating evidence and drawing conclusions from it. “Construction,” or the term 5

On Pasteur, see Latour 1988. More generally, see Latour 1987 and 1993.

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I prefer (in part because of its rich legal connotations), “constitution,”6 refers to the processes that grasp some bit of the world in accordance with existing cultural codes and thus make it meaningful for a particular group. As a number of twentieth-century philosophical traditions have argued, facts do not exist in a pre-legal or pre-political world from which they can be borrowed for legal purposes: facts, as much as theories, are constituted through the same procedures that lead evidence, rebut it, and evaluate its worth and relevance. As Wittgenstein famously demonstrated, meaning does not inhere in words: it comes into existence within the particular social context in which words are used. Similarly, legal facts and legal judgments are only meaningful and effective within a network, one that connects legal decisions and statutes but also includes buildings (e.g., prisons), clothes (robes, uniforms), information codes, individuals, institutions such as legislatures, law schools, and courts, professional associations, and extralegally produced texts such as psychological reports, police notes, and scene-of-crime photographs. To say that law constitutes knowledges is not to claim that law constructs the world by itself or out of nothing or in regal epistemological autonomy. Autopoiesis theory has drawn our attention to the ways that law manages to incorporate not only eyewitness evidence but other facts (e.g., scientific knowledge) into its own framework by transmuting such alien knowledges into legal formats and frameworks: this helpfully highlights the ways that law shapes the world that it then claims to adjudicate. The agency of law, to use a misleading phrase, is a useful site of investigation for those leftists who were brought up thinking that law was a mere side effect or superstructure of “real,” that is, socioeconomic, power structures. But we may agree with autopoiesis theorists Niklas Luhmann and Gunther Teubner that law’s epistemological creativity needs to be acknowledged without following them as they claim that “law” as such is a coherent subsystem within “society” (Luhmann 1989, 137; and see Luhmann 1990). Claims about law as an “autonomous epistemic subject” that thinks in specific ways (Teubner 1989) and becomes more differentiated from other epistemic subsystems as modernity marches forward slip from the necessary acknowledgment of law’s constitutive powers and creativity in knowledge production to a full-fledged effort to recycle the nineteenth-century quest to discern the Truth about Society by outlining certain general laws of development. Teubner’s work does acknowledge that legal epistemology is flexible rather than monolithic (Teubner 1997), but it does not break with the Ian Hacking, usually known as a “social constructionist,” has shown that “constructionism” has become a rather messy and sometimes idealist enterprise (1999). In part for these reasons, Latour describes theorizing as “writing the constitution” (Latour 1993, 13). 6

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fundamental society-as-system, law-as-subsystem framework of systems theory. One can reject the depiction of law as an autonomous epistemic subject generated in the texts of autopoiesis writers and nevertheless acknowledge Luhmann and Teubner’s insights into the ways that law creatively apppropriates extralegal knowledges.7 Inquiring into law’s knowledges, law’s research methods, would not have been possible within the limits of the critique of ideology framework that has been so ubiquitous within progressive legal studies and sociology of law. That framework demonstrated its power in enabling a whole generation of critical legal studies, feminist legal analysis, queer legal scholarship, and critical race theory. But like all frameworks, it has its limits, and these have become more visible in recent years. The inability of this framework to see what Luhmann and Teubner see—law’s active role in constituting powers and knowledges—has already been mentioned. This blind spot can be regarded as the effect of a more general problem, namely, the myth of the socioeconomic “real.” As has been pointed out by Foucaultian critics, the Marxist-inspired project to expose law and other ideologies tended to make certain realist epistemological assumptions (Rose 1987). But this assumed realism was shared across many non-Marxist schools. One can see a persistent attachment to realist epistemology in such critical projects as feminist standpoint theory as well as in certain race-critical works that suggest (often without explicitly stating) that the standpoint of the colonized generates “truthful” accounts. Indeed, the very rhetoric of denouncing statements as lies, a rhetoric dear to the heart of Critical Legal Studies, generates a truth effect: even when the speaker does not make any explicit truth claims, the format of the expos´e has the effect of putting the exposer up on a higher epistemological pedestal. This implicit construction of a standpoint above ideologies can be regarded, following Nietzsche, as an unfortunate effect of language, in this case of the rhetorical form of the expos´e. While it is not possible for us to avoid the truth effects of linguistic forms—just as it is not possible to avoid implicitly constructing a true self because we have no other language with which to speak about action but the language of “I”—it is nevertheless possible continually to remind ourselves that language’s truth effects are just that, effects. Truth effects are, at one level, what this book is all about. 7 With a nod to Roscoe Pound, Stanley Fish argues against Richard Posner’s effort to make law subject to the discipline of economics with a statement that parallels my critique of autopoeisis: “Legal autonomy should not be understood as a state of impossibly hermetic self-sufficiency, but as a state continually achieved and re-achieved as the law takes unto itself and makes its own (and in so doing alters the ‘own’ it is making) the materials that history and chance put in its way” (Fish 1991, 69).

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The term “truth effects” may remind some people of the scary specter of “relativism.” If all truths are merely effects of certain cognitive and symbolic practices, does this mean that all statements are on the same level, that the Holocaust deniers are on the same epistemological plane as the Holocaust survivors, and so on? This is not the place for a fullfledged philosophical inquiry into the false dilemmas generated by the relativism versus humanism polemic; suffice it to say that humanistically inclined readers could nevertheless consider the proposition that it is possible to document and analyze knowledge practices and truth effects without taking a stand either for or against Truth as such. Much of the tired debate between enlightenment rationalists and poststructuralists (the so-called Habermas-Foucault debate, for instance) could have been avoided if a distinction had been drawn between small-t “truths” and the capital-T, nonspecific “Truth” that continues to haunt both philosophy and positivist science. Foucault, and others with similar epistemological analysis, such as Bruno Latour, have never claimed that all truth claims are equally fictitious or constructed. They are not what American culture-wars discourse would call “relativists.” Unlike postmodern philosophers, both Foucault and Latour have nothing but respect for the centuries-old European effort to find out how things work. And they have particular respect for the reflexive dimension of that Enlightenment project, which is the analysis of how we humans create knowledges and devise techniques for managing, classifying, and governing ourselves and our problems. For those of us who, like Nietzsche, have no trouble accepting that every human knowledge project including our own is necessarily situated and thus partial, the death of Truth (which is a necessary sequel of the death of God) does not send us into despair. Instead of continuing to play the tired yes-or-no game that often degenerates into a playground contest (Truth exists; no, it doesn’t; Reason is important; no, it’s not [Osborne 1998]), we may do better to move sideways, as it were, and experiment with an ethical rather than a metaphysical challenge to Truth. Instead of debating like theologians, we can try to think with modesty, self-restraint, and irony. Discovering that Truth is imperialist, Eurocentric, and/or a mere effect of language does not have to lead us into philosophical nihilism. It could instead lead us out of philosophy altogether and into a more practical, embodied, and experimental habitus of mind—one that, as Pierre Hadot has shown, is not at all alien to the older, preacademic forms of philosophic praxis (Hadot 1995). Assuming such a stance—which is very different from adopting a theory—will facilitate the sort of reflexivity that has become not only a theoretical necessity but an ethical and political requirement. In his call to carry out a reflexive anthropology of European knowledge production, Bruno Latour has argued that it is possible to use

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many of the Enlightenment’s tools in order to manageably reduce the scope of the empirical project without abandoning the whole project in postmodern despair. To Latour’s call for a critical anthropology of European knowledge I would like to add a Nietzschean note. Those of us who can no longer believe in Truth because we believe in neither God nor Man have no choice but to refuse to adjudicate the fight between positivism and social constructionism, because recognizing ourselves as particular animals with particular, embodied abilities, we cannot lay claim to any supraterrestrial place from which to enjoy a god’s-eye view of the truth wars (Haraway 1991, 188–90). This does not take us into relativism; relativism is what Hegel would call the bad opposite of universalism, its abstract denial. It takes us rather beyond the truth wars and into the Nietzschean field that Donna Haraway calls “situated knowledges”: the terrestrial, all-too-human world in which truth seeking is not abandoned wholesale, but is now guided by epistemological modesty rather than divine pretensions. A useful technique for effecting this move toward epistemological modesty is to follow through the distinction drawn above between “truths” and Truth. It is perfectly possible to be interested in small-t truth questions (Will reducing taxes increase poverty?) without thereby claiming that Truth is necessary. Even the most sophisticated of postmodern deconstructionist critics presumably evaluate claims such as the one about taxes in the course of making everyday political decisions about voting. Another way of deploying this distinction is to point out that the opposite of “lies” is not Truth but rather “truths.” Outright lies are being told and disseminated in the name of justice as I write these lines, and it is certainly important for us as scholars to join the activists who are agitating to expose them as lies. But while we can and should denounce lies, it seems to me that when wearing our scholarly hats we have a specific responsibility to engage in the more ascetic exercise of telling ourselves that having discovered that “they” are lying does not mean that “we” know the Truth. For political purposes, it is sufficient to know that they are lying, and that those who have been marginalized and oppressed probably have a much better sense of how things work than they have been given credit for. This kind of pragmatic “preferential option for the poor” (as Latin American liberation theology puts it) has, in recent years, been elevated to that status of grand epistemology by left-wing academics—standpoint feminists and some critical race theorists—who believe that the only problem with the Enlightenment quest for Truth was that the wrong people were in charge. But it is not necessary to replace one set of grand theorists with another, more politically grounded set. Inspired by Foucault’s modest appraisal of the role of intellectuals in political and social change, I am suggesting here that

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we regard the “preferential option for the poor” as a pragmatic ethical choice, rather than as some kind of royal road to (alternative or subaltern) Truth. In sympathy with anti-essentialist progressive critics like Paul Gilroy and Judith Butler, this book thus constitutes an ethical experiment in inquiring into the conditions for the possibility of certain legal claims without, in turn, making the claim that I or “my people” (feminists, non-Anglo-Saxons, queers, Canadians, etc.) have a privileged access to Truth. The realist epistemology that continues to be employed by most critical students of law in its social context has had the effect of generating what one might call a “society effect.” Keen to expose and denounce formalist claims about law’s majestic sovereignty, critical legal scholars have tended to fetishize society, regarding law as an effect or a tool of social structures. However necessary it was and still is to denounce the false universalism of liberal legal practice and formalist legal theory and to document the exclusions produced by universal liberal notions, it is also important to remember that, like other complex social institutions, law has a strong constitutive ability whose effects cannot always be predicted even if we know what the generalized relations of power are in a particular context. We will see in the chapters on sexual orientation, for example, that ordinary gay people in North America have come to use the liberal legal fiction of sexual orientation as a name for an inner psychic truth that is experienced as pre-legal. This is just one example showing that law can and does change how people think of themselves and their world in ways that would not be appropriately captured by simply stating that gay people are the dupes of liberal ideology. I have argued elsewhere (with Nikolas Rose) that instead of personifying “law,” a move that always results in questionable generalizations and attributions of agency, it would be far more useful, and more materialist, to speak instead about “legal complexes” (Rose and Valverde 1998). “Law” is the mother of all legal fictions, the always receding specter that forever haunts lawyers and judges. As a specter it has, of course, a certain effectivity (Derrida 1994)—people do many things in the name of law. However, what people do when invoking the law or facing legal difficulties is never law as such. People interact with, and help to maintain or transform, various legal complexes—ill-defined, uncoordinated, often decentralized sets of networks, institutions, rituals, texts, and relations of power and of knowledge that develop in those societies in which it has become important for people and institutions to take a position vis-a-vis ` law. Unlike Law, which hovers beyond the reach of those who act in its name, legal complexes can be empirically investigated. We can, of course, choose to talk about law in general, for

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example, by contrasting law with justice (Derrida 1992). This contrast has been productively used in critical legal theory in recent years, as I, too, have argued in occasional philosophical excursions (Valverde 1999b, 1999c). But in a book in which the proliferation of diverse modes of knowledge within legal complexes is the key problematic, the abstract term “law” has little utility. Simply using the term “law” incites certain lines of grand questioning, among which “What is law?” is foremost. Inspired by Nietzsche and Foucault, on the one hand, and by American pragmatism, on the other, I have come to the conclusion that it is important to resist the will to ask the grand questions—“why” questions and “what” questions.8 In asking such questions theorists have neglected the more mundane question of how it’s all done, leaving inquiries into effects to empirical policy researchers. This book does not set out, therefore, to theorize the state of legal processes. Rather, it asks what a certain limited set of legal knowledges and legal powers do, how they work, rather than what they are—much less what this all means for globalization, patriarchy, or any other grand abstraction. RESEARCHING KNOWLEDGE PRACTICES BY DOCUMENTING EFFECTS

Critical studies, in the sociology of law as in other fields, expose the myth of legal neutrality by revealing the extent to which legal operations uphold and simultaneously conceal relations of power. Feminist scholars, for example, have shown that while the rules of evidence may look gender-neutral on their face, they systematically marginalize and even revictimize women testifying about sexual assault. Critical race scholars have demonstrated not only that law is an important tool of colonialism but also that whiteness is, in part, a legal construct. This type of inquiry into the interests being furthered through the apparently neutral machinery of various legal institutions and texts remains politi8 Instead of asking whether God exists and, if so, what He is and why humanity is as it is, William James’s method of inquiry into religion was to document what God/religion does, as shown in human actions: “The whole interest of the question of God’s existence seems to me to lie in the consequences for particulars which that existence may be expected to entail” (James 1994 [1902], 567). American pragmatism has tended to inquire into “consequences” using the market as the paradigm case; William James often said that concepts had to be studied from the point of view of their “cash value.” One can, however, think of “consequences” not as “cash value” but as material, ethical, and political processes, as Stanley Fish does, and, as is undoubtedly clear, my work is more in tune with this left-wing version of pragmatism than with law-and-economics uses of pragmatism. But I agree with Posner that pragmatism has no necessary political content (Posner 1991), a point William James himself constantly repeated.

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cally as well as intellectually necessary. However, I would like to argue that it does not do either our politics or our scholarship any harm, and it may do both of them some good, to add to our existing analytical repertoire tools that have been developed by critical scholars who have inquired into effects rather than interests. While interests invite us to reveal them by deep analysis, being generally unavailable for direct observation, effects can be more directly documented. As Paul Veyne said in an enlightening discussion of Foucault’s method, effects are “on the surface” (Veyne 1997; and see Hadot 1997). They may not be apparent to all observers, since, like Poe’s purloined letter (this is my analogy, not Veyne’s), they may be invisible precisely because they are so much on the surface. But whether obvious or not, documenting effects does not require making claims about structural causes. The structural style of thought, which helped to generate a great deal of early critical legal studies work, was very helpful in exposing liberal neutrality, but its more positive claims about causation were and remain rather questionable. The sort of explanation we enjoyed twenty years ago (reform X may look like an improvement, but underneath it can be shown to be the same old oppression in more modern dress) implicitly assumes that truth is underneath, behind, or beyond what can be seen and documented. To that extent, critical approaches (in sociology and in law) tend to be driven by the desire that Nietzsche diagnosed when he pointed out that science shares an original passion, a motive force, with its supposed opposite, astrology: “a thirst, a hunger, and a taste for hidden and forbidden powers” (Nietzsche 1960, 324 [bk. 4, aphorism 300]). Foucaultian analyses break with the astrological paradigm. Foucault was able to question his own will to truth long enough to perform a radical move that has few parallels in the history of philosophy. The history of philosophy, or more narrowly the history of epistemology, can be presented as a long fort-da game. One group will be keen on what can be seen and become empiricists, while the next generation, or philosophers living in another country, will be uninterested in what can be seen and will be fascinated by the invisible, the transcendental. Like Nietzsche before him, Foucault refused to play this fort-da game. In a move one can only call deconstructive, he refused to take sides in this battle, or even to develop some kind of “synthesis” or middle ground between the two positions. Instead, he tried to find ways of analyzing events and processes that would not begin by presupposing a dichotomy between the surface and the depths, between the phenomenal and the noumenal, between the present object and the absent Being, between “appearances” and “reality.” When asked to explain Foucault’s method, Gilles Deleuze observed

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that a metaphor Foucault might well have used to describe his method is one drawn from Paul Valery’s remark “le plus profond, c’est la peau” (Deleuze 1990, 119). He then adds that for Foucault the “surface,” the skin, is not regarded as the opposite of “the depths”—as it is in the fort-da game of the history of epistemology. The surface/skin is not superficial, then. But sticking to the surface helps us to avoid the ontological effects generated by any and all hermeneutic efforts, including those of critical legal studies. Foucault does not interpret: he does not claim to peer through the veil of appearance and see into the depths. “La surface ne s’oppose pas a` la profondeur . . . mais a` l’interpretation. La m´ethode de Foucault s’est toujours oppos´e aux methodes d’interpretation” [The surface is not opposed to the depths . . . but to interpretation. Foucault’s method always opposed interpretive methods] (Deleuze 1990, 120). The Valery-Deleuze metaphor of dermatology can help to explain an important difference between the approach I take in this book and the methods favored in most critical and feminist legal studies. The “dermatological” approach is not at all opposed to theory. It is not “empiricist,” but it is thoroughly empirical. Within critical legal scholarship and in most versions of Marxism and of feminism, doing theoretical work seems to involve reading between the lines, looking for hidden interests and determinative structural relations. Deconstructing the surface/depth binary that has plagued both philosophy and commonsense theorizing, metaphysics as well as astrology, for many centuries now, Nietzsche’s main advice on method—which I think Foucault followed— was to caution us against ascribing the deeds and events studied by the human sciences to transcendental entities such as the free will or to invisible forces such as structural causation. What people do should be studied neither as acts of the individual’s Kantian will nor as the product of relentless natural necessity but simply as a set of effects.9 And effects, though not necessarily observed by either participants or scholars, are always observable. Edgar Allan Poe, in a brilliant discussion of the good detective, points out that the skill involved in observing the effects of crime and tracking down the individual who done it is a hybrid one, combining intuition about human motivation, some science, and some cold logic. The analytical mind, as he dubs what in chapter 3 we will call the forensic gaze, is closer to that of a good checkers or card player than to the mathematically powerful brain of the chess 9 Nietzsche’s main enemies were Christianity and Kantian philosophy, so he spent much time critiquing the myth of the individual human self, occasionally resorting to somewhat vulgar scientism in order to refute the assumptions of Kant’s moral philosophy; but in our own days we can use Nietzsche’s tools to critique the determinism of sociological functionalism, which posits transcendental entities (“society,” “community”) construed as more real than the processes and practices that make them up.

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player. As Auguste Dupin put it, in a passage that is thoroughly Deleuzian: “There is such a thing as being too profound. Truth is not always in a well. In fact, as regards the more important knowledge, I do believe that she is invariably superficial” (Poe 1998 [1845], 59–60). The break with the structuralist—or more generally sociological— habit of looking for truth in a well does not mean, in Foucault’s work or in mine, what it might mean for postmodern theorists who declare that there are no causes, that everything just happens, that we live in a meaningless flow. It is only if you expect explanations to be metaphysical that you then feel that the world has fallen into meaningless fragmentation if such explanations are shown to be mythical or arbitrary (as Nietzsche said of the nihilists). That everything is a meaningless flow of ephemeral events is itself a metaphysical statement: it is atheistic in respect to conventional epistemology, whereas my own position is closer to agnosticism. To put it differently: I do not think that a rejection of causality as such is necessary or desirable. The approach I use in this book simply refuses to look for causes underneath events: it refuses to assume that what we cannot see is somehow more real and more true than what is on the surface. Just as Deleuze has speculated that we may do well to think of the inner self as the inward folding of the surface, we can simply say that what is cause and what is effect is a matter of context and perspective. It is not that causes do not exist—that would itself be a major metaphysical claim. It is rather that what is an effect or a cause depends on what one is asking and from what perspective. Or, if one adopts Deleuze’s “fold” metaphor, what is inside and what is outside is a matter of perspective. Thus I do not think that learning from Nietzsche compels us to reject causality as such. It involves, however, unlearning the metaphysical habit of regarding certain processes, codes, or laws of motion as somehow more real than events. Inquiries about effects are necessarily inquiries about the particular effects of particular practices. Rather than using hermeneutical tools to speculate about the meaning of this or that general social relation (the meaning of aboriginality, of addiction, of sexuality, or of pleasure), I am interested in documenting the particular effects of the techniques used by various organizations and institutions to organize, sort, classify, relate, and explain. That knowledge tools that appear to be socially neutral, such as double-entry bookkeeping, the bell curve, the police report with aggregate crime data, or the chart, can have important social effects is the general theme of the literature on historical epistemology (Barry 1996; Daston 1988; Forrester 1996; Hacking 1975, 1991; Poovey 1998; Rose 1989; Osborne 1996). This theme will be explored in this book in legal contexts. Legal arenas and situations are excellent sites for the exploration

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of knowledge in action partly because, unlike science, law admits openly that the accumulation of knowledge is always practical, always aimed at generating a decision, and thus law is institutionally less committed to epistemological unification. It is law’s pragmatic logic that grounds the existence, in legal complexes, of a large number of different local epistemologies. What counts as a proper fact depends on the specifics of the particular legal arena: something may be admitted as evidence in a civil suit that would not be admissible in a criminal trial, to give only the most obvious example. While at one level this is known to every law student, the implications of law’s epistemological pluralism have not been explored even in the literature on legal pluralism. A further complication, particularly important in common-law jurisdictions, is that facts, once introduced, are arranged and related to one another through a number of heteronomous knowledge forms and operations—the precedent, the statute, the rule, and so on. Legal arenas thus demonstrate that what counts as a fact and what counts as a valid way of organizing, assessing, and deriving conclusions from these facts are questions that have many different answers. THEORIZING THE VICE SQUAD: VICES AS BAD HABITS

The questions about knowledge practices described thus far could be pursued across a large number of legal arenas, situations, and institutions. The particular areas that I have chosen as sites for both legal and empirical research have a certain affinity with one another: they all involve human activities that have been traditionally regarded, in the West and more particularly in largely Protestant nations, as morally problematic but not as major sins or crimes. Murder has no public advocates, and judges do not spend any energy justifying the laws against murder. But activities such as drinking, working as a stripper, enjoying the stripper, or selling liquor to someone regarded as vulnerable to alcohol owing to his or her racial identity exist in a large gray area whose boundaries are not clearly marked either in law or in most moral codes. One way of designating the field from which the empirical studies in this book have been drawn is to remember that, even in today’s “crime management” world, there are still specialized squads called “morality squads” or “vice squads.” Every social and legal theorist since Durkheim has pointed out that criminal codes are all about morality; but the “morality” squad does not go after murderers or rapists. Vice squads and morality squads spend their time instead on prostitution, stripping, gambling, and liquor infractions. (Drugs are usually subject to specialized policing.) How might we understand how these quite diverse

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activities are lumped together in policing work? Whereas “crime” has been the object of much theoretical reflection, the “vice” of “vice squad” has escaped critical attention. One would be hard pressed to find a definition of “vice” in either legal textbooks or ethical treatises. Ethical treatises are eloquent about virtue (especially in these days of “virtue ethics”), but vice exists merely as a foil for virtue. As for law, it studiously avoids the term “vice,” or rather it shares with ethics a preference for using “vice” in a merely negative fashion, as in when we are told that not all private vices are public crimes. In elaborating this distinction the focus is always on “crime” and its proper scope, never on that shadowy but constitutive Other, vice. The category “vice” is constitutive of the criminal law, at least in areas such as “offenses against public morals.” Despite its theoretical importance, it has received very little scholarly attention. A vice is something less than a crime—although it can lead to or be coterminous with criminal activity. A vice is also something different from a sin. A sin is a particular act that is definitely wrong according to a particular moral code. Vices are similar to sins in that they are the opposite of virtues. But they are often regarded as faults rather than major trangressions; and, most important, they do not consist of isolated acts. To have a vice is to have a tendency, a habit. Smoking one cigarette may be seen either as bad or as harmless, but either way it is not a vice. Only when one reaches the status of being a smoker does one become a person who has the vice of smoking. Vices inhabit a shadowy realm located somewhere between the isolated “act” governed by criminal law or by the Ten Commandments, on the one hand, and the disciplinary world of the modern deviant “identity,” on the other. Modern deviant identities—the delinquent, the alcoholic, the homosexual—recuperate and revive older notions of vice, but, as against some interpretations of Foucault, it is important to note that the new deviant identities do not completely erase or supersede the classical vices. The language of vice and habit is still in use, perhaps because it allows us to focus on longstanding patterns of behavior without psychologizing, without assuming the deep self of modern scientific psychology (Rose 1989, 1996). We can experiment with ways of reforming our exercise habits or our wine-drinking habits in ways that do not incite us to label ourselves “addicts.” The superficial logic of habit is important not only in the sphere of consumption (smoking, drinking) but in other socio-legal spheres. As I argue in chapters 4 and 5, developments in human rights law, particularly in Canada but also in the United States, suggest that the modern homosexual identity, whose history has been traced by Foucault and by numerous historians, may be in the process of fragmenting. The crimi-

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nal law, particularly in the United States, still relies on and constructs the “homosexual identity” even when claiming to govern only conduct, not status. But human rights law has seen the emergence of a different discourse, one focusing neither on the isolated act nor on the deeprooted essential identity: this is the discourse of “lifestyle” and “community.” When we look to see how the ubiquituous and vague terms “lifestyle” and “community” are provided with some content, we see that in both legal and popular discourse gay life appears as constituted through a series of group habits. In cases concerning individuals who are criminally charged or who are making a claim of specific discrimination, the individual is usually defined in terms of either acts or deep identities or both. But in situations in which communities are at issue, as in the battles about the visibility of urban gay villages (see chapter 5), neither particular acts nor individual psychic identity are at issue. Like ethnic communities, the gay community is regarded as characterized by a collective preference for certain urban spaces, for certain types of consumption and certain kinds of civic habits. What is often derisively called “the gay lifestyle”—and is usually called the gay community or the gay village by its members—is made up of philanthropic, political, and aesthetic habits. The group habits that are thought to constitute “the gay lifestyle” are at one recent transformation in the long genealogy of “governing out of habit” (Valverde 1998b). Studies of sexual orientation and the law— and to a lesser extent studies of drinking and the law—have tended to take for granted the act-identity opposition (or, in American legal terms, the conduct/status opposition). Habit, lifestyle, and community have not been taken seriously as descriptive terms that do a lot of work despite—or because of—an intrinsic vagueness (Cotterrell 1995). Just as courts in the 1960s asked whether one should penalize drunk drivers for having chosen to drink or treat them because they were helpless alcoholics, courts in the 1990s oscillate between the language of “acts” and the expert discourses on identities, and this binary opposition is reproduced in the studies of law in action. Having concluded, in earlier work on drinking, that a great many activities and situations with ethical implications are governed as habits, rather than as either acts or identities, I would like to explore here how law engages with and addresses the shadowy, in-between world of “habit” and “lifestyle.” The way that gay identity becomes a lifestyle under certain political and socioeconomic conditions is not unique. Chapter 8 considers racially specific legal prohibitions on drinking, targeting what Canadian law used to call “the Indian style of life.” Being an Indian can, of course, be an identity; it can also be a distinct legal act, as when someone is added to the official list of band members who are “status In-

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dians.” But when Canadian courts, in the years before 1985, were asked to rule on a “selling alcohol to Indians” charge, they had to decide not only if person X was a status Indian but also if person X “followed an Indian style of life.” The determination of this issue brought into being knowledge of the Indian “lifestyle” in the form of a judicial amateur anthropology of collective habits: “Did Mr. X wear moccasins?” This question, actually asked by a Canadian judge, really meant, “Is Mr. X in the habit of wearing moccasins?” since whether he wore them on the occasion of Mr. Y selling him alcohol was not the issue. The lifestyle question has plagued American political and military authorities: Can armed forces personnel be dismissed for one or two gay acts? Or is it a gay lifestyle that is the problem? If so, how can one operationalize “lifestyle” for legal purposes? Examining one important area in which lifestyle was crucial in law many decades before the emergence of “lifestyle politics”(aboriginal-specific drinking prohibitions) leads us from the more currently fashionable term “lifestyle” to an older term such as “habit.” And when legal knowledge processes turn their attention to the habits and lifestyles of groups and communities— as well as the site-specific, temporary lifestyles of particular urban spaces, such as pubs on weekend evenings, discussed in chapter 6— expert scientific knowledges are almost never determinative. T H E “ A N A LY T I C A L M I N D ” O R F O R E N S I C G A Z E

Socio-legal scholarship on police work has tended to emphasize the growing importance of scientific and technical facts, and scientific tests and information formats. It is undoubtedly important to understand how the task of finding the truth about crime has changed as a result of new techniques and formats. And yet, if we are to avoid generalizing about the domination of science, it is necessary actually to investigate the knowledge relations created when high-tech information is “translated into” (Latour 1987) a context—a court of law, for example—in which scientific logics do not dominate. As Sheila Jasanoff’s careful study of how police officers presented the DNA evidence in the O.J. Simpson criminal trial shows, a scientific fact becomes something rather more hybrid when a court has to consider not only the validity of the fact but also the credibility—and hence the moral character—of the witness who introduces the evidence (Jasanoff 1998; Lynch and Jasanoff 1998). And what science-and-technology studies of law do not even consider is the ways in which scientific “truths” coexist, in legal arenas, with such nonscientific facts as what the reasonable person ought to have known.

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Legal knowledges of truth depend crucially on the knowledges introduced by way of evidence. In the case of inquiries into sexual vice, an inquiry rarely thought to demand scientific knowledges, police testimony is particularly important. Examining two trial transcripts to map out the knowledge relations constituted in the interchanges among police witnesses, prosecutors, and judges (chapter 3) leads to the conclusion that sexual vice is constituted as a legal object largely through what Edgar Allan Poe called “the analytical mind” (Poe 1998 [1845]) and I here call “the forensic gaze.” A brief discussion of the famously stained blue dress worn by Monica Lewinsky shows that the “analytical” mind that works with some scientific knowledge but mostly with directly observable, particular clues is an epistemology that is by no means exclusive to detectives or forensic technicians. The study of the world’s clues has been marginalized from science ever since the Scientific Revolution cast aspersions on the “correspondences” and “affinities” of Renaissance cosmology, but the quest for clues-based truth is by no means extinct. It persists and indeed flourishes both in popular culture and legal arenas—and is even used for such high purposes as deciding whether a president ought to be impeached. By contrast with the betterknown medical gaze and with the equally renowned actuarial gaze of statistics, the forensic gaze has received very little scholarly attention (exceptions are Thomas 1999 and Cole 2001). Nevertheless it continues to fascinate not only its practitioners but also all of us who vicariously participate in searching for moral clues. D I S O R D E R A S T H E V I C E O F C E RTA I N S PA C E S : A D M I N I S T R AT I V E K N O W L E D G E S

Chapters 2, 4, and 8 investigate how various officials and legal authorities claim to know personal vices (indecency, drinking.) By contrast, chapters 5, 6, and 7 are also concerned with moral order and vice but focus on situations in which questions about the utilization of urban space figure more prominently than questions about personal vices. In chapter 5 some Canadian human rights cases involving local Lesbian/ Gay Pride celebrations allow us to consider how a certain type of gay community has been constituted as a legal and political agent with a certain “lifestyle”; this issue is also explored in the context of the failed Colorado constitutional Amendment 2, which sought to forbid localities from passing the urban-specific human rights laws thought to further not universal rights but the “special” interests of the community of white urban gay yuppies. Moving from sexual to drinking lifestyles, in chapter 6 we consider the question of “urban disorder” and the threat drunkenness poses to it from the point of view of the sociology of legal

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knowledges. My examination of British pub licensing law and policy argues that, contrary to what legal historians usually claim, the United Kingdom does have a strong tradition of “police powers”—powers usually exercised by muncipalities and magistrates. These powers are in their practice enabled through the deployment of what I here call “administrative knowledge,” a category that includes the “police science” of eighteenth-century administrative and legal reformers (Knemeyer 1980; Small 1909) but is somewhat wider. Administrative knowledge cannot be subsumed either under science or under “everyday” lay knowledge: it is an in-between, hybrid epistemological category. Like indecency and like drunkenness, urban disorder is at one level a matter of “common knowledge”; but, unlike in the case of drunkenness, an entity that law assumes is always already known, in the case of disorder in public spaces certain officials have a privileged authority to find and to manage the ill-defined objects of indecency and disorder. Hence, although much “administrative knowledge” consists of the sorts of facts and causal links that are in the domain of “commonsense,” it is nevertheless a separate category in the sociology of legal knowledges, since certain administrators are empowered to give opinions that are not expert opinions in the legal sense but that override the testimony of customers or passersby. An interest in hybrid, in-between knowledges deployed in regulatory and administrative law leads inevitably to research sites located in the realm of “the state” rather than in the field of everyday life. Unlike the more exalted, usually national sites studied by political science and legal scholarship, regulatory sites have historically appeared as “too mean” to merit scholarly consideration (as Adam Smith said about municipal governance; see chapter 6). One of this book’s secondary aims is to question the scholarly habit of immediately turning to the federal level when thinking about state power. Our societies, and our cities in particular, teem with a kind of personnel that has been hitherto largely invisible to both mainstream law scholarship and to grassroots-oriented lawand-society literature. Liquor inspectors, whose actions and opinions are recorded in minute detail in the voluminous, Jeremy Bentham–like files of the Liquor Licensing Board of Ontario, are a case in point: despite an unusual wealth of data, there is no scholarly study of this type of regulatory work. Other jurisdictions and other regulatory bodies lack the detailed data; nevertheless, given the large amount of discretion involved in, say, refusing a publican a license, it is curious that there is virtually no scholarship documenting how British magistrates have used these powers. Again, in the case of indecency law, there are case comments on some key cases and, at the other end, much generalizing about law and sexuality; but we have no sustained socio-legal study of the

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process by which particular erotic behaviors are said to be “indecent,” or, for that matter, “sexual,” in the interaction between police, municipal officials, and prosecutors that leads to charges being laid. The privileging of bureaucratic files and lower-court transcripts does not mean one can afford to neglect the traditional source of data of legal study, namely, court decisions; thus many judicial decisions were read, especially for chapters 2 and 8, which in some sections come close to traditional legal analysis. But in contrast to the literature that investigates the scientificity or nonscientificity of legal reasoning (e.g., Brewer 1998), my interest throughout, even when reading cases, is not on the principles of law. Rather, I focus on the deployment of knowledges within and in relation to law, wherever that occurs, prioritizing questions of epistemological authority and sidelining doctrinal questions. I M P E R AT I V E K N O W L E D G E : T H E D U T Y T O K N O W

Chapter 7 uses two studies of alcohol and law to reflect on the ways that knowledge, regarded by sociologists as a resource or even a form of “capital,” is in many legal contexts a duty rather than a resource. While sometimes the duty to know brings with it rewards and status (e.g., in the case of licensed professionals), in the case of drink, those on whom the duty to know is imposed by law get no reward, even symbolic status, for actually having the kind of knowledge that courts call “common knowledge.” While said to be “common” by contradistinction with the special knowledge of expert witnesses and the particular factual knowledge of eyewitnesses, common knowledge is nevertheless not necessarily common in the empirical sense. Whether the people held responsible for knowing exactly when someone is too impaired to drive actually know this is a question that does not concern law. That common knowledge, like “the reasonable person,” is a necessary legal fiction is, of course, not a novel claim; but the implications of the persistence of the curious imperative epistemology of “the duty to know” are explored here in ways that may prove fruitful for subsequent studies in the sociology of legal knowledges. These implications become clearer when the different forms of knowledge documented in this book are considered together. For example, neither the “common knowledge” demanded of waitresses and drivers (chapter 7) nor the administrative knowledges of vice and disorder documented throughout the book have any specific content. If the “common knowledge” imputed to people by law, however effective in judicial decision making, is as a form of knowledge nothing but a dream—a dream that is necessary in order to make citizens, officials, and employees monitor and manage some of the risks of disorder—so, too,

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administrative knowledge is always open-ended, in process, unfinished. Urban reformers and police officers may know that broken windows are a sign of decay and vice; but there is no exhaustive list of indicators of vice, much less a clear checklist of indicators of virtue, order, and decency. Lacking a definite content, these creative, dynamic, hybrid, open-ended knowleges that move so powerfully through legal and political arenas are held together, I have concluded, through a certain common logic: the easy juxtaposition of commonsense, job-based knowledge, and (very occasional) borrowed bits of science. Creative hybridity (Moore and Valverde 2000) is the name of the knowledge game, in regulatory and administrative arenas as well as in certain processes within criminal law. As a contribution to the sociology of legal knowledges, this book thus opens up the study of areas outside the binary opposition of expertise versus everyday knowledge—the study of what, for lack of a more precise term, I refer to here as “low status” knowledges. B O D I E S O F L AW: A N O T E O N C U LT U R A L S T U D I E S

Many of the issues and legal questions studied in this book, particularly those pertaining to “the sexual,” have received much attention recently from feminist and other critical scholars working in the legal regulation of the body. Judith Butler, Davina Cooper, Janet Halley, Alan Hyde, Les Moran, Kendall Thomas, and Alison Young are just a few of the authors whose works have amply demonstrated that examining law’s constitution of bodies is crucially important not only for gender studies but also as a way of revealing some important “truths” about law more generally. Cultural studies—defined broadly to include most feminist and queer legal theory—has proven to be the most important resource for these studies; indeed, many of them are explicitly labeled as “law and cultural studies.” One way to begin to explain (or rather constitute) the difference between my approach and that of most work in cultural studies is to note that within cultural studies the focus tends to be on meanings. How meanings are constructed, disseminated, revised, challenged—this is the central question of the literature on law, sexuality, and desire produced within cultural studies. As Austin Sarat and Jonathan Simon have recently put it, “treating law as a cultural reality means looking at the material structure of law to see it in play and at play, as signs and symbols, fantasies and phantasms” (2001, 19). Signification is, of course, a crucial dimension of sociality and the sine qua non of knowledge production.10 My approach, however, seeks to highlight two di10

One reason for my caution about cultural studies of law is that there is some slippage

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mensions or aspects of the power/knowledge nexus that are not usually studied in “law as culture” work: (1) epistemological authority; and (2) the formatting of knowledge. One of the book’s key concerns is the distribution of epistemological authority. Who is authorized to interpret acts and representations and situations for legal purposes? Why are expert witnesses thought to be appropriate in some cases not involving technical matters but inappropriate or inadmissible in very similar cases? What is the status of testimony that lies somewhere between “fact” and “expert opinion”? These questions address the relation between bodies of knowledge and the human bodies that appear in court, a relation often neglected by those who do “discourse analysis” or textual deconstruction. The rules of evidence make it very clear that knowledges are always site-specific (as one sees, for example, in the process by which expert witnesses are qualified each time they offer testimony, even if they do it often). A tight link is thus made between a person, a witness, and a body of knowledge, a link that distinguishes law from arenas such as scientific peer review, in which the personal character of the person presenting facts is precisely that which is excluded. The studies undertaken for this book show, as a whole, that legal epistemological authority is constituted through several uncoordinated processes which, to make matters more complicated, do not work the same way for all categories of actors. The issue of epistemological authority, therefore, cannot be investigated with any one method or approach or any set combination of methods; different situations call for different types of investigation and different sources. The second dimension of my inquiries, and one that also goes beyond “culture,” is that of knowledge formats (Ericson, Baranek, and Chan 1991). When a liquor inspector performs a routine inspection, how does he write up his report? Using a form with preset categories that can be checked off, which is what is done today, has different sociolegal as well as epistemological consequences than writing a narrative, as was done in former times. It is also noteworthy that the voluminous files on each bar and restaurant in Ontario compiled by the liquor licensing authority contain no quantitative information or aggregate data (e.g., gallons of beer served, average number of customers per night). Other sources of information about vices and risks contained in other in Sarat and Simon’s argument (and in other works along similar lines) between the more modest empirical aim of analyzing the semiotic dimension of legal institutions and the programmatic claim that studying law as culture is more important than other approaches: “As the logics of governance in the late modern era turn from society to culture, legal scholarship itself should turn from society to culture as well, and more fully embrace cultural analysis and cultural studies” (Sarat and Simon 2001, 7). It is difficult to see why “culture”—rather than postmodernity, the risk society, and so on—has somehow replaced “society.”

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government department archives, however, are full of numbers and statistics. Historians of scientific formats, such as Ian Hacking, Lorraine Daston, and Mary Poovey, have shown that how one collects and presents information is as significant as the conceptual content. This insight, well developed in the literature on social studies of science, has very rarely been utilized within cultural studies. To give an example, a Canadian court was recently told that the children’s rhyme, “finders keepers, losers weepers” is a common-law maxim. The unusual knowledge format is not unique to this case: a Lexis search reveals that there are sixty-five documented uses of “finders keepers” in U.S. case law, along with several deployments of Jack and the beanstalk and a couple of the old woman who lived in a shoe.11 Now, semiotic analyses (law-as-culture) analysis could enlighten us about the content of the rhymes—the cultural meanings associated with old women or with shoes, for instance—but would contribute little to an analysis of the differential distribution of various knowledge formats. To inquire into the use of children’s rhymes and other sources of “common” knowledge may prove as interesting as launching psychoanalytic or semiotic inquiries into the myths imported through the figure of the old woman. Why would a court use a children’s rhyme to trigger “common knowledge,” rather than invoking “the principles of natural justice,” “time immemorial,” or some other unwritten authority? We can address that kind of question if we pay close attention to format. The question of format is closely related to the question of epistemological authority, since certain formats have a built-in tendency to empower certain knowers. Numerical charts tend to empower technicians, health-risk statistics tend to empower epidemiologists, and so forth; and nonscientific formats authorize a variety of personages, including that of “the reasonable man.” Nevertheless, the link between format and authority, which structuralist discourse analysis would read as hardwired, is flexible and variable. Particular uses of certain formats have to be studied in the context within which they occur. Knowledge formats—like narrative genres—do not always generate the same epistemological or ontological effects to the extent that all knowledge production and dissemination (as Bakhtin showed long before the rise of sociology of knowledge) is always dialogical, and hence context specific. M O V I N G O B J E C T S : B O D Y, D E S I R E , F L E S H

As a final prefatory note, a word is in order here about why I tend to avoid speaking about “the body” even though I am centrally concerned 11

I thank Ron Levi for having the idea of doing such a search and giving me the results.

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to map the ways in which law and other regulatory tools construct bodily behaviors and moral dispositions. Feminist and queer analyses of legal processes are often written from the standpoint of the body. Most of these works focus on—and hence reproduce—the category of desire, with desire being thought of as inhering in bodies, whether or not a psychoanalytic framework is assumed. Analyses of the ways in which gendered, racialized, and sexed bodies and desires are investigated and constituted through legal processes have enabled us to gain numerous insights into the way that legal complexes use and rework particular representations of bodies, sorting them, evaluating them, and adjudicating desires along the way. Sex and race have been the main categories of analysis in this diverse and quickly expanding literature on “law and the body.” There are signs, however, that in the future more attention will be paid to body parts, substances, and bodily entities and attributes not reducible to the preexisting logics of race, gender, and sex. Alan Hyde’s Bodies of Law (Hyde 1997) is exemplary in this respect: it manages to incorporate the insights of feminist and other critical studies of law and sexuality into an analysis of the legal constitution of bodies that radically de-centers “sex.” Hyde shows that legal truths about bodies are not always sexual or racial: lawsuits that involve ascribing a value to certain body parts or bodily functions, for example, provide Hyde with a rich site on which to analyze legal mechanisms for naming and evaluating those aspects of embodied existence that are neglected by psychoanalysis, feminism, and postcolonial studies. Hyde’s work shows that feminist and queer legal analyses that persist in talking about “law and the body” are misleading in two ways: they homogenize law, and they have the effect of reproducing the myth that sexuality—and/or race—is the truth about the body. The human body is not one, to misquote Irigaray. The ways that race, sex, and other abstractions circulate through and constitute the meaning of a particular body in a particular legal situation cannot be predicted in advance from any one theory about “the body”; they must be empirically investigated (see also Bentley and Flynn 1996). While sharing Hyde’s interest in documenting aspects of bodily constitution that have been largely invisible to feminist, queer, and postcolonial studies, this book differs from Hyde’s in not taking “the human body” as its primary object of study. The body is not the only or even the main entity constituted and governed by what I might call, speaking quasi-metaphorically, “the vice squad.” As I have shown elsewhere, excessive drinking is usually regarded as neither a strictly physical condition nor a mental defect but rather as a disease of that ontologically hybrid or liminal entity, “the will” (Valverde 1998a). The will is supposed to link mind to body, reason to passion, and for that reason it is

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not exactly in or of the body. Along the same lines, when studied at the level of the individual, bad habits, whether caused by a weakness of the will or by lack of training, always have a bodily existence, but they are not solely “of” the body. And when studied at the level of the group or collective, bad habits—and, for that matter, harmless, quaint, culturally specific habits—are physically visible, but they are more than physical. What is at issue in many of the cases I highlight is not the body but rather the habits of the community or, in contemporary parlance, certain “lifestyles.” And while the habits and preferences of Blacks and women, as has been amply shown in the feminist and critical race theory literatures, have been thought of as inscribed directly on the body, for groups that, unlike Blacks or women, include many individuals whose affiliation is ambiguous or invisible, habits become an all important source of information for outsiders. You may not always be able to spot Indians or gays by sight, since their bodies do not always appear as already distinguished from those of whites or heterosexuals; but by their habits ye shall know them. The issues of collective identity raised by human rights and other legal processes cannot be fully analyzed if one limits the discussion to the abstraction of “the body” or even to the field of “bodies.” C O N C L U S I O N : T O WA R D A N O N D I C H O T O M O U S JURIDICAL FIELD

In an important analysis that opened new avenues for the sociological study of law as a set of knowledge practices, Pierre Bourdieu argued that “the juridical field” is constituted mainly by the professionalization of knowledges not only of law but even of justice (Bourdieu 1987b). In our particular present, however, continuing to oppose “science” and “expertise” to experience and democracy is inappropriate in respect to the study of law—especially for common-law jurisdictions. The knowledges that are constituted in and circulate through law are rarely so coherent and bounded as to allow classification into one of the two traditional categories (expertise or experience). Some scientists aspire to create “pure” scientific knowledge; some ethical philosophers dream of a purely rational knowledge of norms. Legal actors and institutions, however, care little about epistemological purity and derive great benefit from being epistemologically creative. The study of the epistemological creativity and hybridity displayed not only by judges but by both ordinary citizens and lowly officials engaged in the negotiation of legal truths may thus make an indirect contribution to the work of those who take a more normative approach than I do. Those activists and politi-

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cally active academics who are attempting to devise knowledge strategies with democratic effects may find it useful to know that the social study of legal knowledges shows that there are many in-between practices of power/knowledge that take us beyond the dichotomy of science versus experience.

CHAPTER TWO

The Art of Drawing the Line: Judicial Knowledges of Community Morality and Community Harms ✦ Critical studies of law and sexuality usually deploy some version of the repression hypothesis in order to explain law’s constant effort to draw a line separating legally stigmatized images and words from the larger universe of representations inciting sexual desire. Explorations of how legal authorities impose sexual norms through law often conclude that law is just another mechanism for sexual oppression, misogyny, homophobia, and/or repression. This kind of conclusion reproduces a now discredited functionalist way of thinking, even as it infuses it with new content. Certain laws or uses of law are explained by reference to their supposed usefulness (functionality) for patriarchy, for continued sexual repression, or for the maintenance of heterosexism—just as in the 1950s mainstream thinkers thought that identifying the ways that institutions, such as family life or churchgoing, supported general social integration was sufficient to “explain” both the origin and continued existence of such institutions. Research now tends to identify contradictions and tensions rather than seek unifying explanations. Historians as well as sociologists have pointed out, for example, that married women with children may have their own reasons for upholding “the family” as an institution, reasons that have nothing to do with general social integration or cohesion. And critical legal scholarship, once dominated by class-centered functionalism, now tends to agree that legal and social institutions often persist not because they serve some overall purpose— maintaining social cohesion; upholding patriarchy; repressing sexuality—but because they happen to provide sites on which diverse and often conflicting forces temporarily converge. In addition to the new trends in social history and socio-legal scholarship that emphasize tensions and local specificities, the broad influence of Foucaultian genealogical methods has popularized the idea—Nietzsche’s idea—that researching the historical origins of an institution does not explain why the institution still exists today. The slippage between contingent historical roots and current social effects that characterizes all versions of functionalism has been repeatedly refuted by theoretical and empirical

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studies that emphasize the inventive ways that legal tools and other technologies of governance have been borrowed, broken down and reassembled, used against the grain, and redeployed in a variety of ways by a variety of authorities and groups (e.g., Rose 1999). Despite these new views, however, it is still easy to fall into the old habit of explaining legal processes by reference to some invisible underlying structure that is imagined as having “needs” and functions, perhaps because of a poverty of methodology—a dearth of resources with which to undertake research projects giving concrete shape to the widely shared ideas about the importance of documenting contradictions and specificities. This chapter tries to develop the methodological toolbox needed to avoid falling into the old habit of seeking unified social purposes and functions in the study of legal governance by elaborating some specific questions about authority, particularly the authority to know. Who is authorized, in law, to discern and to govern such socio-legal entities as “obscenity” or “urban blight”? And how exactly is the necessary knowledge gathered and justified? How are the various knowledges deployed in legal processes formatted (Ericson, Baranek, and Chan 1991; Moore and Valverde 2000)? Functionalism was challenged and eventually dethroned as a social science paradigm in part because it assumed the very thing—a unified “society”—that was being investigated. While few critical scholars today would venture generalizations about “society,” critical work on law and sexuality nevertheless often generalizes both about “law” and about “the body.” Deploying terms such as “desire,” “passion,” and “the body,” and, especially, “law,” and forgetting that these terms are abstractions, often results in studies in which the specificities of legal regulation and the contradictions within law are both elided or ignored. Law has never been unitary; but in relation to sexual regulation, contradiction and divergence seem to be on the increase and thus call for analysis. Certain areas of law—human rights law, equality law—have changed a great deal over the past twenty years, such that discrimination against gays and lesbians, and in some places also transsexuals, is prohibited; other areas, by contrast, such as obscenity law, and sodomy laws in the United States, remain static. The substantive question that motivated the research done for this chapter was this: Given the massive changes in family law and human rights law that have swept many jurisdictions in the Western world and even some beyond “the West,” why have “old” laws like obscenity statutes not fallen into disuse—if not in the United Kingdom and the United States, at least in jurisdictions with more “enlightened” top judges, such as Canada? The Canadian federal law criminalizing abortion, for example, was thrown out by the Canadian Supreme Court in 1988, and, despite dire warnings,

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nothing has been put in its place. Similarly, in major decisions in 1995 and 1997, the same court proclaimed that discrimination against gays and lesbians is in fact prohibited by the Charter of Rights even though sexual orientation is not specifically named in the Charter. But obscenity law remains, both in the books and police action. To pursue this issue, this chapter focuses on smaller questions that have often been left unasked in the rush to generalize about law’s unconscious or functional role. The questions asked here highlight (a) the historicity of current law; and (b) the dynamic, open-ended tensions and contradictions within law. The main three questions devised along these lines are these: What is the significance of the shift, within obscenity adjudications, to supposedly rational, neutral, utilitarian tests of obscenity, notably “community standards” and “risk of harm”? Do obscenity law and other laws explicitly mentioning sex govern sex and gender only, or are other entities and problems governed through sex law? What is the significance of the current fashion for using municipal zoning law (rather than criminal laws) to clean up downtown areas? In attempting to discern some answers to these questions, this chapter, like the rest of the book, focuses on the question of knowledge. Thus instead of denouncing this or that law or judicial decision as repressive and praising this or that other law or court as progressive, here we will bracket normative questions and ask instead “how” questions that illuminate the ways that knowledges are produced by the same processes that constitute the legal power to govern people and things. To be specific: as judges move to “community standards” rather than intrinsic offensiveness as a test of obscenity, how do they know what the community standards are? Who speaks for the community and with what kind of authority, what type of knowledge? What exactly is the harm of sexual representations, and how is it gauged? When municipalities try to use zoning law to govern public displays of commercial sexual desire (“adult” businesses), what evidence do they have to produce about the “urban ills” that supposedly justify interfering with speech rights? In keeping with the general approach outlined in the introductory chapter, explanations are here sought not at the “deep” level—the epistemological level populated by social structures, vested economic interests, patriarchy, and compulsory heterosexuality—but rather at the level of governing practices. In the first part we shall see that an interesting shift has occurred in recent years, a shift (most explicit in Canadian law) away from a deontological concern to govern morals and toward a more or less utilitarian rationale invoking “harm.” This shift is being encouraged by influential mainstream legal writers such as Cass Sunstein (1993b). But we shall see that the “harm” of Canadian obscenity

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law has turned out to be as multivocal and ambiguous a term as “morality,” as Bernard Harcourt has argued more generally for the harm principle (Harcourt 1999; cf. Valverde 1999a). One of the unexpected results of the shift to the harm standard or test is that a number of social objects that are not fully within the field of the “moral” or “sexual” are now coming to be governed through obscenity law—as we shall see in the prosecution of a London, Ontario, store owner distributing 2LiveCrew music charged as obscene. Sharp disagreements among Canadian judges and other legal actors about what kind of harm is most important and who is an authority on harm have emerged in the years after the original formulation of the risk of harm test in the 1992 Butler (R. v. Butler [1992] 1 S.C.R. 452) decision. Although Canada is more advanced along the road of governing sexuality through harm, risk of harm rationales are already present in some U.S. law regulating sexuality: as explained below, the weakly documented collateral harms of the sex industry—lower property prices, crime, the vague entity called “blight”—became crucial evidence as U.S. courts upheld zoning regulations effectively banning sex industries from certain areas. There is a whole line of cases (including several Supreme Court decisions) in which one can see the stigmatization and ostracization of sexually oriented commercial activity being achieved in recent years not through the sovereign instrument of criminal law but rather through the utilitarian, public-good rationale of land-use regulations, especially municipal zoning law. Moving away from “offense to morals” and toward “risk of harm” will thus not necessarily make law more liberal and rational. The next section takes up a related question: How does obscenity law accumulate or certify knowledge about its object(s), whatever that might be in particular situations? In the United States, how is a jury supposed to know when a film, “taken as a whole,” can be said to appeal to prurient interests and be lacking in artistic, scientific, or political value? In Canada, how are judges supposed to determine if a film poses a serious risk of harm as viewed from the standpoint of that entity Canadian law calls “the community”? “Common knowledge” is regarded in law as sufficient to decide these truly monumental questions—just as it is thought to be an adequate tool with which to draw the other line that perpetually fascinates us, the “line” separating the races (Haney-Lopez 1996). In obscenity determinations, common knowledge has taken a peculiar form. This is the community standards test, whose main feature is the a priori epistemological de-authorization of precisely that entity that sociologists and ordinary people would both call “the community.” The community standards test turns out to work by reinstalling the epistemological sovereignty of the court. In the terms of Bruno

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Latour’s paradigm case of disputes about the authorization of knowledge (Hobbes’s view that the sovereign controls knowledge versus Robert Boyle’s view that science is its own sovereign), the courts’ methods in obscenity and other sexually related cases are, in fact, more Hobbesian than scientific (Latour 1993). But unlike Hobbes’ Leviathan, the community-standards judge no longer speaks in the name of sovereignty: in line with current neoliberal governance (Crawford 1997; Rose 1999), he or she speaks in the name of “community.” Finally, the last section considers a different area of law—land-use regulations deployed by municipal councils and officials to distinguish a certain kind of business (“adult” businesses) for specially onerous regulations that in many cases amount to exile. Whereas obscenity law has received a huge amount of both scholarly and political attention, the regulation of the public display of sexual desire on city sidewalks, walls, and other spaces through municipal powers that claim not be coercive because they do not criminalize but merely regulate has received far less attention, despite its far-reaching effects on potential consumers of books and films and on property interests. The case pitting Alameda Books and other Los Angeles “adult” businesses against the city of Los Angeles that was heard by the Supreme Court in December 20011 is only the most recent of a line of cases that tell us a great deal about the governance of public culture and urban space through the legal stigmatization of “adult” venues. Throughout this chapter, as indeed in the rest of the book, my approach differs significantly to that followed by other feminist, left-wing, and queer scholars whose political judgments I usually share. Perhaps the best way to describe how I go about my analysis is to reiterate the comment made in the introduction: in breaking with the structuralist habits of social-control thought in which I was trained, I am inspired by Deleuze and Foucault’s emphasis on observing what one can see, documenting the effects that are visible to all—rather than theorizing about the hidden motives or ultimate purposes of law and other machineries ˇ zek, as a Lacanian, uses psychoanalytic explaof governance. Slavoj Ziˇ nations that I tend to avoid; but to show that even within psychoanalytic frameworks for analyzing the socio-legal regulation of morals and sex one could try to move in a more Deleuzian, “dermatological” direction, let us here cite a comment that can be applied to this chapter as ˇ zek’s own work: well as to some of Ziˇ When, a couple of years ago, the disclosure of Michael Jackson’s alleged “immoral” private behaviour (his sexual games with under1 See City of Los Angeles v. Alameda Books Inc. 121 S. Ct. 1223 (mon) U.S., 2001, and more recently, City of Los Angeles v. Alameda Books WL 970712 (May 13, 2002).

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age boys) dealt a blow to his innocent Peter Pan image, elevated beyond sexual and racial differences (or concerns), some penetrating commentators asked the obvious question: What’s all the fuss about? Wasn’t this so-called “dark” side of Michael Jackson always here for all of us to see, in the video spots that accompanied his musical releases, which were saturated with ritualized violence and obscene sexualized gestures (blatantly so in the case of Thriller and Bad)? The Unconscious is outside, not hidden in any unfathomable depths—or, to quote the X Files motto, “The truth is out ˇ zek 1997, 3) there.” (Ziˇ F RO M O F F E N S I V E N E S S T O R I S K O F H A R M

Discussing legal rationales for criminalizing some forms of speech, Cass Sunstein, partly under feminist influence and partly as a general effort to rationalize law, has suggested a “major and salutary shift from issues of offense to issues of harm. Regulation would be acceptable in some cases, but for new and different reasons” (Sunstein 1993b, 163). The proposed institution of the harm principle—used by courts in a variety of expression-related cases but not (yet) enshrined as a new test of obscenity by the U.S. Supreme Court—is, for him, part of a broader project to revitalize American democracy. The First Amendment, he claims, was not drawn up in order to safeguard all individual expression, as right-wing and left-wing libertarians both claim. Rather, the First Amendment was part of Madison’s project to create the conditions for republican political life, in part by eliminating the traditional European practice by which the sovereign monopolized the political by limiting and channeling expression. If obscenity law is to be reformed, this is not because—as libertarians claim—clamping down on expression is bad per se; Sunstein distances himself from the popular American view that regulation  bad. Obscenity law needs to be modernized, Sunstein believes, because the aims of republican political institutions are not currently being served. Taking up the harm perspective and reforming obscenity law accordingly (Sunstein 1986) would require shifting the focus away from what is offensive and focus it on what is harmful, that is, away from obscenity and to “pornography.” In seeking a more rational rationale for obscenity law, Sunstein is primarily concerned with harms to women—both the direct, physical harms associated with pornography consumption and also the less visible harms to women’s sense of dignity and ability to behave, and to be seen as behaving, as serious political actors. But opinions differ as to what harms flow from or are associated with pornography. A look at the evolution of Canadian law since the Supreme Court of Canada offi-

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cially installed the risk of harm test as the main criterion of obscenity in 1992 shows that Sunstein’s eminently reasonable suggestions may, if adopted (as they were to a large extent by the Canadian Supreme Court), give rise to highly variable and unpredictable consequences. It also demonstrates the more general point that judicial efforts to make law more precise and rational are “congenitally failing operations” (Rose and Miller 1992), given law’s multivocality (Sarat 2000). The Canadian federal government had attempted to rewrite the obscenity law in the mid-1980s, by providing more specific criteria of obscenity and paying some attention to pornography’s role in what feminists called the degradation of women. This attempt failed, for reasons that need not detain us here (see Lacombe 1994) but that had more to do with the diversity of positions from which the law was criticized than with any collective faith in it. This political failure left trial judges in the position of having to adjudicate cases using a law that had been publicly pronounced dead by the Justice Minister and by most participants in the protracted public debate. In the meantime feminists, filmmakers, gay bookstore owners, and others directly affected by the law carried on numerous very public campaigns against bureaucratic or judicial decisions they thought were irrational. In this context the Supreme Court decided to hear an appeal in an otherwise unremarkable case from the province of Manitoba, and in 1992 a unanimous decision was issued that, in effect, wrote a new, more modern obscenity law. The decision in R. v. Butler took two judicial tests that had already been elaborated in previous decisions on freedom of speech issues and articulated them systematically. These were the “degradation or dehumanization” test and the community standards test. The articulation of these two tests was effected by means of a new test that, in practice, became the main criterion of obscenity: the “substantial risk of harm” test. First, degradation or dehumanization. By 1985, at the height of what was known throughout North American feminisms as “the sex debates” and during the same year that a blue-chip committee of Canadian experts recommended a more modern, more feminist obscenity law, arguments to the effect that pornography should be criminalized because and insofar as it degrades women had found a sympathetic ear or two in the Supreme Court. To an unprecedented extent, the 1985 Towne Cinema decision (R. v. Towne Cinema Theatres Ltd. [1985] 1 S.C.R. 494) eschewed the older moralistic language still current in British courts, deploying instead the words “degradation or dehumanization” to characterize pornography. Later on, in the important 1990 Supreme Court decision in Keegstra (R. v. Keegstra [1990] 3 S.C.R. 697), confirming the constitutionality of criminalizing some forms of racist hate

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speech (“hate propaganda” in the law’s words), Chief Justice Brian Dickson argued that, despite the freedom of expression right codified in the then very new Charter of Rights, the hate speech law was justified as a proper limit on expression because “hate propaganda” causes “degradation and humiliation.” The judges on the Supreme Court were undoubtedly aware that the phrase “degrading or dehumanizing,” which is not sufficient but is necessary in order to get a conviction, is not much clearer and more distinct than the words of the obscenity statute itself (“undue exploitation of sex”). Instead of clarifying what they meant by the phrase—which would have pitted the feminist meanings of “degradation” as gender oppression against the Christian theory of the flesh and its passions as posing an inherent risk of degradation—they simply left it undefined and went on to establish a rule that took attention away from the phrase’s multivocality. They ruled that depictions of “explicit sex” [sic] that are “degrading or dehumanizing” will not necessarily be criminal, but they will be criminal if they pose “a substantial risk of harm” (R. v. Butler). The Butler decision’s risk of harm test has met with a warm reception both from other judges and from the public, including most of the feminist public in the United States as well as Canada: it was criticized only by marginalized groups such as pro-sex feminists (Cossman et al. 1997), experimental filmmakers, and gay activists and booksellers. Those who were happy with Butler were, however, not a unified group: contrary to Tolstoy’s claim about happy families being all alike, it is possible to be happy in different ways, for different reasons. Conservative groups were happy that the obscenity law had been vindicated, and the Christian connotations of the phrase “degrading or dehumanizing” must have been music to their ears. Trial judges seemed happy—in my reading of a variety of decisions—to have a new tool less tarnished by discretion and moralism than the old one. And a majority of feminists were happy because they thought—partly because Catherine Mackinnon told them so, at length2 —that the Canadian Supreme Court had done what the American courts refuse to do, that is, acknowledge systematic genderbased harms. Did the Supreme Court of Canada really enshrine Mackinnon’s theCatherine Mackinnon had been involved in writing an intervenor brief (amicus brief) for the Women’s Legal Education and Action Fund (LEAF) that was discussed even more widely than the court decision, at least outside chambers. Her involvement was at the time kept secret, since a Canadian feminist lawyers’ organization would lose political capital if they acknowledged using a lawyer not familiar with Canadian law, but it has since become “common knowledge.” For two differing analyses of LEAF’s intervention, see Busby 1994 and Gotell 1995. 2

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ory of pornography as systemic gender harm (Mackinnon 1987)? The short answer is no. Violence against women and children is mentioned in the decision, but in such a way that only what is known in tort law as “willful blindness” could produce the conclusion that the decision (written by a very mainstream judge, John Sopinka) reflected the Mackinnon view. In Mackinnon’s work, the notion of gender harm has the effect of undermining the legal notion of “persons.” There are no persons in Mackinnon’s world, only two groups, men and women. (Racialized groups are, for her, subgroups within each gender.) Instead of law’s theory of individual persons committing individual acts, Mackinnon gives us a relentlessly structural functionalist picture of a society in which “law” is but a mere reflection of the deep fundamental cleavage of “society,” namely gender, defined as sex, defined in turn as the objectification and subordination of women. Mackinnon has always argued that violence against women is not an unusual activity committed by deviant individuals; she has argued that such violence is a fundamental part of patriarchy and is, as such, totally functional. Violence against women—which is almost indistinguishable from sex and from gender— is profoundly “social,” in the Durkheimian sense. For the Canadian Supreme Court, however, violence against women is regrettable and unfortunate: which means precisely that it is not systemic, and certainly not “social.” Mackinnon sees pornography as functional for a deeply patriarchal society; the Supreme Court, by contrast, sees pornography as a form of deviance, as an unfortunate blemish on an otherwise egalitarian society. The consumption of pornography is thus categorized under the 1950s functionalist banner of “antisocial conduct”: Harm in this context means that it predisposes persons to act in an anti-social . . . manner, as, for example, the physical or mental mistreatment of women by men, or, what is perhaps debatable, the reverse. Anti-social conduct for this purpose is conduct which society formally recognizes as incompatible with its proper functioning. (R. v. Butler, 485) The heavy weight put on the sociologically discredited term “antisocial” suggests that neither violence nor sex are fundamentally gendered, and that violence or “degradation” is a minority, deviant preference, firmly—even “formally”!—rejected by “society.” But one can see in the awkward syntax of the passage cited the traces of feminism: Justice Sopinka finds it impossible to conjure up the specter of women sadistically beating up on men, a specter which the legal logic of “persons” compels him to imagine. Pulled in two different directions, he cuts the Gordian knot by adding the awkward phrase “what is perhaps more

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debatable,” which acts as a sop to feminism while reassuring male readers that it is indeed possible for men to be victims of women. Feminism is indirectly acknowledged but “liberalized” in that violence against women is categorized as socially dysfunctional. As if the marriage of liberal feminism and 1950s structural functionalism were not awkward enough, the text goes on to add yet another, quite incommensurable rationale for governing pornography: the Christian theory of the flesh. Unlike some Catholic francophone members of the Supreme Court, who engage in overt value-waving,3 Sopinka—like the other non-Catholic judges—does not parade his commitment to family values. Instead of speaking the language of Christianity, he only cites it. And as an authority on the flesh, he cleverly chooses not an obviously conservative text but rather a text authored by the Court’s most notorious feminist, Madam Justice Bertha Wilson. Wilson (now retired) is married to a Presbyterian minister, but her public persona is simply as a feminist. In a perfect instance of intersectionality, people can only see her as one thing at a time, and since she is famous as a feminist, it is assumed she is nothing but a feminist. In the 1985 Towne Cinema decision, which modernized Canadian obscenity law by enshrining the community standards test, Wilson had written that obscenity is harmful insofar as “the public has concluded that exposure to material which degrades the human dimensions of life to a subhuman or merely physical dimension . . . must be harmful in some way” (cited in R. v. Butler, 480; my emphasis). Physical sex without love, passion unredeemed by “high value” institutions such as marriage, pleasure without commitment . . . such is, of course, the very essence of the pornography industry, as Christians see it anyway. It is hardly necessarily to prove that the complaint about reducing life to “the merely physical,” now made sometimes by feminists against masculinist cultural products, was one of Protestantism’s chief complaints about women in general, and about images and idols as well. As Peter Goodrich has eloquently demonstrated, the deep suspicion that English/Protestant law has about images, art, flowery rhetoric, idols, and bodies is fueled by misogyny: early Protestant legal thought went The nine-member Canadian Supreme Court always has three members from Quebec, for reasons of constitutional history. In recent years these have included some of the court’s most morally conservative members. While Catholicism is well represented, the Christian Right, so powerful in American legal circles, is virtually absent at this level. It should also be noted that the Butler court included only one woman; at present, the court has three women justices, including the Chief Justice. Supreme Court appointments are not subject to parliamentary ratification, unlike in the United States: the absence of confirmation hearings means that Canadians, even lawyers and legal reporters, have very little knowledge of the judges’ political and moral views. 3

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hand in hand with such texts as John Knox’s First Blast of the Trumpet against the Monstrous Regiment of Women (Goodrich 1995, 100). Although for some women there is a clear continuity between the Christian critique of the flesh and the feminist critique of male lust, nevertheless feminists have reason to be suspicious about the legacy of John Knox. Now, I am not claiming here that the Butler text is “really” Christian and that feminist language is used as mere window-dressing: judges of all political stripes may well be sincerely concerned about violence against women, after all, and the risk of harm test, like many other legal entities, does not have a single meaning—its effectiveness lies precisely in its multivocality and ambiguousness. The point of the close textual analysis is rather that introducing the Christian text from the Towne Cinema decision into the Butler definition of harm takes the harm test much further away not only from Mackinnon but from feminism more generally. That the text of Butler manages the remarkable feat of using some feminist language and some Christian language from a known feminist pen to undermine feminism’s basic insights on gender power has turned out not to be an original analysis on my part. In one of the few obscenity prosecutions in the immediate wake of Butler, involving a homemade lesbian s/m magazine, Bad Attitude, a provincial court judge in Toronto found that a fantasy narrative in the magazine was obscene according to Butler. He spent much time proclaiming that the gender of the characters should be irrelevant in determining the risk of harm, while at the same time seeing sexual difference, rather implausibly, as constitutive of harm to lesbians. He opined that since the written depiction would have been obscene if the “top” had been a man, it was obscene in the case of two women, and disregarded expert evidence (by a lesbian sociologist) about the meaning of lesbian sexual representations (Ross 1997). Gender is irrelevant, then: but at the same time, sexual difference is deployed as a necessary tool to read lesbian pornography and decipher its social effectivity (its risk of harm), a curious hermeneutic technique dubbed “hetero-inversion” by Brenda Cossman (Cossman 1997). Meanwhile, back in the Butler text—as if we did not already have too many answers to the question, harm to whom and to what?—a new potential victim of pornography is added to the mix: the Charter of Rights and Freedoms. Although this point is not elaborated, Sopinka mentions that degrading or dehumanizing sexual representations pose a danger to the Charter values of equality and the dignity of the person. This statement links obscenity law to the hate-speech law that is almost never used but was declared by the Court to be constitutional in the 1990 Keegstra case. The values of dignity, mutuality, and equality that

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are mentioned with great ceremony, however, are nowhere to be seen at the all-important technical level. Although the feminist group LEAF had argued in its intervenor (amicus) brief to the Supreme Court that pornography is criminal because it breaches the equality rights of women explicitly guaranteed in the Charter, the court did not even mention the equality rights section of the Charter in its decision. One of the many American legal feminists who praised Butler, Ann Scales, grandly claimed that “obscenity law in Canada is now about equality.” But even she admitted (in a footnote) that “nowhere does the Butler court cite the gender equality provisions of the Charter” (Scales 1994, 358). The omission of the equality rights provision from the Butler text’s lengthy discussion of obscenity has the effect of authorizing the peculiar degendered/gendered reading of s/m, sex, and violence effected by the Toronto judge in the Bad Attitude case,4 a reading that no feminist, American or Canadian, has been willing to endorse publicly. Whether harm is to be interpreted as harm to a homogeneous 1950stype “society,” to the moral consensus of a Christian nation concerned to avoid sinking into “the subhuman,” to women’s specific gender interests, or to the Charter values of equality and dignity of all persons—or all the above—was thus as unclear after Butler as it had been before. Briefly examining two post-Butler cases corroborates this. The risk of harm test announced with such pomp and circumstance by American feminists as well as by Canadian judges can be seen as the drama bound to be followed by what Marx would call the inevitable farce. This was a 1996 Ontario Court of Appeal case, R. v. Jacob, turning on the legal issue of how to introduce the risk of harm test into indecency law (R. v. Jacob [1996] 31 O.R. [3d] 350). The plot of the farce was as follows: a young woman, Gwen Jacob, studying philosophy and women’s studies at Guelph University, had decided one hot summer day to challenge what she thought was a gender-specific law prohibiting women from going topless in public. She took her shirt off in the middle of the day and proceeded to engage in what the court oddly describes as “a walkabout.” This walkabout was not an orderly royal affair but, on the contrary, a veritable orgy of public disorder. Indecency case law is full of dark indoor spaces and nighttime parking lots and cars, but this story took place in the full light of day and—a point that could have had much significance if the Court of Appeal had chosen to highlight it—in the presence of unwilling sexually innocent spectators, namely, a group of children playing outside their houses who, on seeing a bare-breasted woman, ran inside to tell their mothers. Traffic ground to a halt; a city bus stopped on its route; men drinking 4

The Bad Attitude case was R. v. Scythes [1993] O.J. 537.

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beer on front porches ogled and whistled; and various police officers, beginning with a beat constable and ending with a sergeant accompanied by several cruisers, unsuccessfully attempted to persuade her to put her shirt back on. The trial judge found that Ms. Jacob had indeed breached the “indecent exposure” statute—a law mostly used to prosecute the proverbial male flashers with raincoats—and this was upheld at the first appeal level. But the Ontario Court of Appeal decided that the indecent exposure statute, which like most other components of the law of indecency had received very little scrutiny by appellate courts, ought now to be subjected to the Butler test of harm. Choosing to highlight the Butler decision’s comments about gendered harms and violence and ignore the discourse on the subhuman flesh, the Ontario Court of Appeal’s three judges all agreed (though for somewhat different reasons) that no substantial risk of harm was posed by Ms. Jacob’s activities. The conviction was therefore overturned. The legitimization of an action that other courts believed to be indecent was achieved by placing Ms. Jacob wholly on the side of reason (not passion): the court curiously described her actions as “a demonstration,” despite the fact she walked all by herself. This case caused a furor, with parks supervisors, municipal politicians, and even the provincial Attorney General entering a spirited, selfconsciously farcical debate about skinny dipping and so on. The public debate failed to note, however, that a key factor in Ms. Jacob’s victory over moralism was a lack. She was not a sex worker. Indeed, she was a feminist philosophy student, which is probably as far from the body as one can get, in the spectrum of images of femininity. The Court mentioned in its decision that the men ogling her with binoculars did not pay, and so her stripping was “entirely noncommercial.” Other provincial courts have gone along with this interpretation: an Ottawa woman who was topless in the street was convicted in large part because she was known to work as a prostitute (R. v. Gowan [1998] O.J. 1629). So the very women who have the best “lawful excuse,” as law puts it, to go around topless are expressly forbidden from doing so. A new line has been drawn between the speaking, rational, political woman, who can now bare her breasts even in the presence of unsuspecting children, and the whore of old, who must be covered while outdoors. In these post-Victorian times, the semiotics of vice is somewhat more complex than it used to be. A whore can no longer be distinguished at a glance through her “love of finery” (Valverde 1989) or through any other visible stigmata of badness; but she is marked out, just as effectively, by the presence of money. One might think that financial need would legally justify the baring of the flesh: unlike other women, hookers have sex because they want

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the money, not because they are lustful. But this is not the way law works: money is thought to make women’s bodies more rather than less lustful and immoral. This unusual devaluation of economic enterprise is one of the tools used to differentiate “high-value” from “low-value” speech in American First Amendment law. While people can commodify body parts and bodily capacities and even genes to a remarkable extent, particularly in U.S. patent law and tort law, sex-trade workers have been left to carry the burden of the Christian critique of usury and commodification, the burden imposed by what Alan Hyde calls the theory of the sacred, noncommodified body, a theory that, as he carefully documents, coexists quite happily with the complete commodification of the body and its organs and fluids in other areas of law (Hyde 1997). Genes can be commodified but not the sexual body. First Amendment law as well as law on “performances” is pervaded by the assumption that lust is bad enough but that compounding this vice with avarice is really too much. Noncommercial sexual representations are generally less regulated than for-profit ones, and so, too, is exposing one’s body more legally suspect if done for money. This theory of the compounding relation between two deadly sins (avarice and lust) is one of the reasons why the generous interpretation of the risk of harm test developed by the Ontario Supreme Court, while no doubt useful to any other feminist who wants to protest, is unavailable to the hundreds of women who perhaps most need to have the representations of their bodies governed by a risk of harm test rather than an offences to morals test. The risk of harm test was applied to the statute on permitting indecent performances (the stripping and lap-dancing statute) by the Supreme Court of Canada in a 1993 case, generating an interpretation more or less in keeping with the post-moralistic approach of the Jacob decision. In regard to the Pussycat Club in Montreal, in which men paid to watch women perform what amounted to masturbation and were able, in the privacy of a booth, to masturbate themselves as they watched, Supreme Court Justice Peter Cory opined that since the activities involved consenting adults behind closed doors, and since there was a strict physical separation of customers from performers, there was no substantial risk of harm. Making a choice to draw the line around AIDS rather than around moral contagion, he wrote: “In these times when so many sexual activities can have a truly fatal attraction, these acts provided an opportunity for safe sex with no risk of infection” (R. v. Tremblay [1993] 2 S.C.R. 932 at 972). This interpretation prevailed for a few years, giving rise to a great boom in adult entertainment parlors. It was, however, firmly rejected a few years later by the supreme authority on the risk of harm test, its

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original author, Justice John Sopinka. Writing in 1997 in regard to a notorious Toronto strip club, Cheaters, Sopinka spent some time denouncing the narrow physicality of his fellow judge’s approach in Tremblay. Physical harms, including AIDS, that may befall women involved in stripping are, of course, bad things, he wrote. But “while obviously regrettable,” they are not determinative. The risks he had in mind in Butler, Sopinka clarifies, are not primarily risks to the women who work in the sex industry. What is determinative of risk of harm is something Sopinka invented, namely, “attitudinal harm.” This harm exists only among the customers of the sex industry, it would seem: the relevant harm, he wrote, is “attitudinal harm on [sic] those watching the performance” (R. v. Mara [1997] 2 S.C.R. 630630, para. 34). A feminist might agree with this focus on masculinity, but for her, the relevant harm would consist of the risk of men going home from such establishments and proceeding to degrade and dehumanize wives and girlfriends. But this potential risk remains unmentioned, and so it is mainly men, and also “society” in general, that are placed in the role of victims of the harms of the sex industry. The actual or potential harms to the women workers (which in any not documented in this case) are presented as legally irrelevant, as merely collateral and hence only “regrettable” rather than determinative. Adopting a risk of harm rationale, as proposed by Cass Sunstein, does not always make regulation more “rational,” less moralistic, and more modern. The risk of harm test, whether applied to determine the direct harms thought to be inherent in pornography or the indirect harms thought to be linked to certain forms of organized sexual speech, does not produce predictable results. There are harms and there are harms, and there are victims and there are victims; even more important, the purported victims do not seem, generally, to have any say in the discovery and evaluation of the harms they are thought to suffer. This is crucial: it would be possible to look at the attitudinal harm of pornography and indecent performances with the tools of tort law. But the women, who are the only stakeholders likely to sue for damages, have already been sidelined. The men, on their part, are hardly likely to sue for emotional damage; their actual behavior in the strip bar was not entered into evidence, but it is highly unlikely that any evidence could be gathered to support the idea that they or male strip-bar customers as a group feel harmed. Thus the Mara concept of attitudinal harm, while drawing on the powerful political symbolism of the victimization paradigm and its harm rationale, constructs harm in such a way that the feelings or opinions of the purported victims are totally irrelevant (Berlant 1997). So if the women performers are not authorized knowers of harm and

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the male customers are equally disqualified, who is the authority on harm? Only the “community as a whole,” it turns out, can possibly know whether the male customers are being attitudinally harmed. “A finding of indecent performance depends on a finding of harm to the spectators of the performance as perceived by the community as a whole” (R. v. Mara, 553, para. 34; my emphasis). C O U RT S A S V E N T R I L O Q U I S T S F O R T H E C O M M U N I T Y

What Canadian law calls attitudinal harm, like the corruption of morals of the old Hicklin test, is a process only visible from above. In a neat circular motion, the invocation of the supposedly democratic entity of “the community as a whole,” which is performed not only in the Mara case just analyzed but in every obscenity adjudication, brings us right back to that old sovereign technology, the “tendency to corrupt morals” of the nineteenth-century Hicklin obscenity test (R. v. Hicklin [1868] L.R. 3 Q.B. 360). The Sunstein-type, pragmatic risk arguments that were deployed in Tremblay, and in the Ontario bare-breasted feminist student case, are undermined by the very phrase that is supposed to uphold democracy and separate liberal obscenity law from monarchical censorship, namely, “community standards.” Unlike obscenity, which in Canada is supposed to be judged from the standpoint of the nationstate (in the United States, the relevant community consists of the citizens of each state), Canadian indecency is thought to be somewhat dependent on local context; but it is clear that, after Mara, it is the national reasonable person, whoever she might be, that is empowered to decide whether a particular local audience of male customers is being attitudinally harmed by watching the performance. This is clearly seen in the way an experienced downtown Toronto criminal court judge applied the Mara decision shortly after it was issued. At the same time that the Supreme Court was fine-tuning the risk of harm test in this antifeminist direction in the Mara case, during the trial—for “indecency,” under the bawdy-house laws—of the gay male Toronto bar Remington’s (discussed in the next chapter for different reasons), defense counsel for Remington’s tried to introduce evidence to the effect that the patrons of the bar, as members of a defined community that functioned like the ethnocultural communities enshrined in Canadian multicultural policy, were not shocked by the strippers’ stage performance. The lawyer, Canada’s most famous criminal defense counsel, Edward Greenspan, set out to make constitutional history by changing the “community standards” test to allow for pluralism and subnational differentiation. To this effect, he introduced several experts on the gay community, including a couple of openly gay university professors,

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one “rational” psychiatrist who testified that the worst risk of harm in a strip bar comes from the cigarette smoke, and a couple of community activists and leaders.5 He asked these expert witnesses to explain to the court the gay male community’s standards, much as, in cases involving ethnoracial minorities, expert testimony about that community’s customs and values is often introduced. The judge—who was sufficiently impressed by the fabled Greenspan appearing in his lowly court as to ask him for advice on points of criminal procedure—did not, however, choose to recognize the distinct specificity of the gay community’s moral-cultural standards. He could hardly have done otherwise, given the Supreme Court’s Mara decision, which confirmed explicitly that the “community” of “community standards” is a national one. The wording of his judgment demonstrates vividly the peculiar effects produced when a risk of harm test, developed in the context of concerns about violence against women and sexist images, is deployed, without modification to fit the actual community in question, in an all-male gay environment. Judge Bruce Young first cites the Mara decision: “The conduct at issue in this case in the context in which it takes place is harmful to society in many ways. It degrades and dehumanizes women and publicly portrays them in a humiliating manner, as sexual objects, with a loss of their dignity” (R. v. Potts). Without any sense of irony, he then goes on to say: “In the above quote, substitute ‘men’ for ‘women.’ ” He then cites another part of Justice Sopinka’s decision in Mara, to the effect that “the risk of harm to the performers is only relevant insofar as that risk exacerbates the social harm resulting from the degradation and objectification of women.” And he uses this to justify a finding of indecency at Remington’s, even though the male dancers on stage were never shown to suffer any risk of any harm, whether psychological or material. But in order to make this finding he is forced to add, once again, “in the above quote, read ‘men’ for ‘women.’ ” Professor Brian Pronger, a queer theorist who teaches in the University of Toronto’s Physical Education faculty, had testified at length that gay male sexuality cannot be understood by simply reading “men” for “women”; but this had no impact on the judgment or, for that matter, on any other subsequent judgment. Indeed, the Supreme Court later found, in the Little Sisters case (Little Sisters Book and Art Emporium v. Canada [Minister of Justice] [2000] 2 S.C.R. 1120) (concerning Can5 Initially the dancers were charged with performing indecent acts, but during the trial the prosecution dropped these charges such that, in the end, only the two managers were convicted (R. v. Potts [1999] O.J. 4737 and R. v. McKeigan [2000] O.J. 1598). Thanks to Breese Davies for providing information about this case.

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ada Customs’ discriminatory seizures of gay and lesbian books and publications imported from the United States into Vancouver), that gay and lesbian material is, on the one hand, important for the personal and collective psychological health of gays and lesbians but, on the other, is subject to being read from the standpoint of the presumptively heterosexual nation. In the Remington’s gay strippers case, Judge Young, not yet in possession of the final judgment in Little Sisters, cites the immediately preceding judgment on that case, by the British Columbia Court of Appeal: Harm is not to be determined by the standard of the gay/lesbian community but by application of a national community standard. The question is not whether harm will be caused to the gay/lesbian community by the importation of obscene material, but whether harm to society generally may be caused by importation and proliferation of such material. (BCCA in Little Sisters Book and Art Emporium [1998] 160 D.L.R. 4th 485; cited in R. v. Potts) The national community invoked here, it must be clarified, is not coterminous with the public surveyed in opinion polls. No poll regarding the acceptability or the harm of any sexual representation has ever been introduced in any Canadian obscenity or indecency case I have examined. Such polls, if introduced, would, in any case, be given very little weight: this is because the community of community-standards testing is more like Rousseau’s general will than like “the will of all.” It is not an empirical sum of individual opinions. It is, rather, the deep moral consensus of the nation, as interpreted by judges (there are no juries in any of these cases). A minority opinion in the Canadian Supreme Court’s 1985 Towne Cinema decision had argued that expert evidence on what the community thinks, specifically from people employed by provincial governments to classify films for commercial distribution, might well be helpful for judges adjudicating obscenity. If part of a majority decision, this might perhaps have opened the door to expert opinion evidence from various community leaders, however defined. But Madam Justice Bertha Wilson’s undemocratic opinion prevailed. She ruled as follows: Evidence of the community’s standard of tolerance may well be useful and indeed desirable in many cases. Nonetheless, I do not consider that there must be evidence, expert or otherwise, which the trier of fact accepts before a particular publication can be determined to violate the community standard. It is the opinion of the trier of fact on the community standard of tolerance with which we are concerned. (R. v. Towne Cinema, 211; my emphasis)

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In the years since this 1985 decision, little has changed in this respect. Trial judges are authorized to speak for the community, without any inquiries into what the community thinks, and indeed without any evidence whatsoever. The question of who represents or speaks for the community came up in a much-publicized obscenity trial in the middle-class, overwhelmingly white town of London, Ontario. Immediately in the wake of a jury acquittal in a Fort Lauderdale obscenity trial involving a 2LiveCrew rap music performance in June 1990, the owner of a bookstore and record shop in London, Ontario, advertised that he would be selling the 2LiveCrew album “As Nasty as They Wanna Be”—an album that was not otherwise available in Ontario, given that the distributor had (as is the usual custom) given in to police pressure to produce a “cleaned-up” version of this album to sell in Canada.6 Defense counsel for the bookstore’s owner (the noted libertarian law professor Alan Young) brought an expert witness to argue that national community standards were inappropriate as a tool to decide this case, since 2LiveCrew music draws on the specific experiences, language, and values of the African-American community. The largest Ontario newspaper, the Toronto Star, reported on this as follows: Defence witness Robert Bowman, a musicologist from York University, denied the tape was obscene. The explicit lyrics, which describe violent sexual intercourse, oral and anal sex and urinating into women’s mouths, are merely the exaggerated language of life in the inner city ghetto, Bowman said. Such explicit scenes, as portrayed in the 2LiveCrew tape, were never intended to be taken literally, he said. Such lyrics are so exaggerated they can be regarded as comedic, Bowman added. Emery [the bookstore owner] agreed, testifying that [he], like his giggling supporters [who showed up in court wearing “Censorship Sucks” t-shirts], found the lyrics funny. “Break your backbone” is in fact a metaphor for vigorous and energetic sexual activity and must not be construed as sexual violence, Bowman explained. (Toronto Star, May 14, 1991, F4) The judge, unimpressed by this attempt to redefine harm by claiming a different community perspective, ruled that the tape was obscene because it was “disgusting” (not a criterion in Canadian law, incidentally) and made “very substantial use throughout of the F-word and specific Although there is undoubtedly more censorship in Canada than in the United States, in part because Canada imports the majority of its publications, from scholarly books to porn, from the United States, which gives the administrative discretion of Canada Customs officers a large field of operation, the 2LiveCrew album had been declared obscene in parts of the United States, such as Georgia. 6

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use of terms for male and female genitalia” (which is also not a legal test of obscenity). More relevant was his finding that the tape repeatedly denigrated women. “There is nothing of love and tenderness on the Nasty tape but only a message of violent sex and denigration of women” (Toronto Star, July 17, 1991, A1). But then, in a move clearly designed to create a disincentive to appeal, the judge gave the bookstore owner a conditional discharge rather than the large fine the prosecution had been seeking. A similar controversy surrounded the release of another rap record, NIGGAZ4LIFE, by Los Angeles–based NWA. British police seized a shipment of this album, and stores in the United Kingdom stopped stocking it; in Canada the record did get distributed but with a strong parental advisory. Provincial police in Ontario were said to be considering laying charges, but this never took place—perhaps because the distributors made a point of classifying the album as “social commentary” rather than as a sexual commodity. The publicity release for the album stated: “NWA doesn’t rap about life in the ghetto. NWA is life in the ghetto” (Toronto Star, July 18, 1991, E6). There are, of course, many views on “the ghetto,” but very few of these are likely to get media exposure through court testimony, given the features of obscenity law. The fact that the commodity in question is being charged as obscene determines whose opinion is heard, whose version of community standards gets an airing in court and hence in the media. The prosecution is obligated to portray the represesentations as dangerous; the defense, by contrast, is obligated to seek unambiguously supportive testimony. As a result, more complex perspectives about Black or other minority cultures get excluded. In the 2LiveCrew case, not surprisingly, the voices of Black women were notoriously absent from the trial and are unlikely to be heard in any similar future cases. The debate—in the 2LiveCrew case as in cases involving gay male porn and gay male entertainment—is posed as a binary one: the mainstream/ national community versus a unified, male-defined “community.” Thus, even if judges did become receptive to the kind of cultural arguments presented by the musicologist in the 2LiveCrew trial, questions would remain about who is authorized to speak about or for “the” community. To summarize this section, then: in regard to both gay and Black communities in Canada, it is clear that the new test of obscenity and indecency—risk of (social) harm, as perceived through the eyes of the national community, as interpreted by a judge—acts to govern more than sexual desire. The complex politics of multiculturalism infuses the process by which judges apply the tests and make determinations about how to ventriloquize the “national” community. In turn, the internal debates within minority cultures about ethical and political standards

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and values are preempted by the more public process of adjudication, through which largely white, heterosexual judges choose to accept or reject very particular, court-oriented opinions about what “the” community feels about such topics as the portrayal of violence against women in rap music. “ A D U LT FA R E ” A N D “ U R B A N B L I G H T ” I N U . S . L AW

Although obscenity law in the United States is not explicitly subject to the risk of harm test developed by Canadian courts, a different kind of legal process affecting sexuality has come to be adjudicated by determinations about harm: the harms to downtown communities posed by “adult” (that is, sleazy but not obscene) shops. The harms posed by this type of establishment are part of a much broader entity—the galaxy of risks to community life that various U.S. courts have dubbed “urban ills” and “urban blight.” Now, other scholars have studied the socioeconomic processes of gentrification and the associated reforms that have transformed the physical space and social relations of numerous American cities over the past decade or so (Davis 1992; Ellin 1997; Zukin 1991). But there is more to cities than urban design, race, and poverty. As far back as medieval laws confining or marking prostitutes, cities have experienced struggles over visible displays of sexual desire in public culture. One such struggle concerns a type of venue through which sexual desires are rendered visible and legally actionable in urban space: so-called adult businesses (porn theaters, video outlets, and porn bookstores). In Detroit in the 1970s, in New York City under Giuliani, in a variety of other cities in the 1980s and 1990s, businesses designated by city officials as adult have been subject to special, often very onerous, regulations. The regulations generally involve separating adult uses of urban space from uses considered as the opposite of sexual (churches and schools, most commonly) by imposing a requirement that no adult business can operate within a certain distance, usually five hundred feet, of the specified “innocent” uses. In addition, although a few cities have decided to concentrate such businesses in a designated zone, following the logic of the red-light district, most cities seem to have chosen the opposite approach, forcing adult businesses to scatter themselves in an isolated manner throughout the city and often beyond the downtown to spaces zoned as industrial. This type of regulation is obviously financially onerous for the business owners, as well as highly inconvenient for the customers. But what concerns us here is that the regulations are onerous epistemologically: owners have to constantly keep track of other owners in order to make sure that their business does not fall afoul of the regulations, as a church

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moves from one place to another or another adult business opens its doors within the prohibited zone. Given that the specified no-go zone around each adult business has a radius of one thousand feet, knowing what other businesses are within this zone requires much time and energy. Like the bar managers charged with the difficult task of constantly monitoring the individual evolution of drunkenness among each and every one of their patrons (see chapters 6 and 7), the owners of adult businesses are not so much regulated as “responsibilized” to regulate themselves and the spaces they control (O’Malley 1996). It would be easy to blame the forces of sexual repression, personified in morally conservative judicial appointments made by Republican presidents, for the fact that U.S. courts have, for some time now, authorized municipal reformers of the William Bratton and Rudolph Giuliani type to zone sexually oriented businesses almost out of existence. However, whatever the motives or sexual attitudes of the judges, an analysis of the legal context of these regulations shows that one need not invoke the repression theory to explain these regulations. Although criminal law is largely prohibitory, negative, and sovereign, municipalities have huge powers to create urban order positively by micromanaging not only public space but also private property—as any homeowner denied a permit to renovate his or her home or forced to install smoke detectors or fire escapes will recall. The application of these powers in particular cases is sometimes checked through judicial review of individual acts of administrative discretion; but the powers themselves, which are quite ancient (Novak 1996; Pasquino 1991; Knemeyer 1980), are solidly entrenched in both statute and common law. It is only because U.S. law happens to consider that porn shops sell “speech,” whereas hair salons, taxis, outdoor vending stalls, and bars are thought not to traffic in speech, that the zoning of adult businesses is subject to any form of judicial review. Far from being more regulated than nonsexual establishments, then, the sex-oriented shops are in a more privileged legal position than the average licensed business, since the former can try to overturn regulations by donning the mantle of free speech. By contrast, the chatter of bars, restaurants, taxis, health spas, and outdoor markets is not seen as speech in U.S. law, and so city officials can micromanage these spaces and activities much more closely. The contradiction between the free speech rights of porn businesses and the police powers of municipalities and subnational governments has been managed by courts through judicial demands that municipalities do two things: (a) use these powers selectively, by targeting a specific kind of business rather than every bookstore that sells porn; and (b) provide some evidence that there is a pressing governmental interest (“urban decay” counts) that acts as a counterweight to free speech

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rights and justifies the limitations on speech imposed by the regulations. (The key Supreme Court cases that have set out these rules are Renton v. Playtime Theaters Inc. [1986] 475 U.S. 41 and Young v. American Mini Theaters Inc. [1976] 427 U.S. 50.) Let us look at both of these requirements from the point of view of the sociology of legal knowledges. An important technique through which the sweeping police powers of the state (here, the municipality) are turned into selective, targeted, “smart” regulations is a much-copied list of what counts as an adult publication. The list of “specified sexual activities” (cited here as it appears in the city of Los Angeles petitioner’s brief submitted in the fall of 2001 to the Supreme Court, in the Alameda Books case) goes from “acts of human masturbation, sexual intercourse, or sodomy” to the broader category of “fondling or other erotic touching of human genitals, public [presumably meaning “pubic”] region, buttock, or female breast.” Even in the absence of any erotic activity, however, a publication can be classified as adult if it shows “Specified Anatomical Areas.” These are not limited to the traditional sexual parts shown in a nude state. They also include “human male genitals in a discernibly turgid state, even if completely and opaquely covered” and “female breasts below a point immediately above the top of the aureola.” Cultural critics could undoubtedly show that this pornographic list of details fails miserably at the task of drawing a legally viable line around a certain set of publications. Drawing a sharp legal line around adult publications is no doubt as futile a task as trying to set out objective legal criteria for distinguishing thrillers from police procedurals. But as entertaining as such an analysis of the failure of law’s dream of drawing the line would be, such a semiotic analysis would be irrelevant in terms of investigating legal effects, because, as it turns out, the list of “activities” and “areas” does not actually work to define a type of publication. It is not the publications that are being targeted but rather the establishment that is said to be in the regular, habitual business of selling them. An adult business—and it cannot be overemphasized that it is the space, not the text or image, that is the target of zoning—is defined as follows: one that has a “substantial” or “significant” part of its stock in publications or films distinguished by their “emphasis” on “matter describing, depicting, or relating to” the specified anatomical areas and sexual activities.7 Thus no matter how carefully an owner sorts his or her publications into piles depending on whether they fall under the 7 In all the cases examined the same two lists (of activities and body parts) were included in the “definitions” part of the regulations. The lists are presented, like many other legal terms, as gaining increasing authority through repeated reiteration, even though no justification of their particular content is found in any of the documents examined.

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adult label (assuming this can be done), the zoning inspector still has immense discretion in deciding whether the number of such publications is “substantial” or “significant.” And in the most recent case on this matter, the point in dispute was precisely the proportion of adult materials that suffices to make the store adult, not the designation of publications. How zoning inspectors exercise their police powers to mark certain businesses as adult is documented in the respondent’s brief to the Supreme Court submitted by the adult bookstore owners challenging the Los Angeles adult zoning. The lawyer authoring the brief on behalf of the bookstore recounts his attempts to get city officials to tell his clients just what they should do to turn an adult business into a non-adult one. The lawyer contacted the city on behalf of his clients to find out if there was a specific percentage of adult stock that makes a store an adult space. As seen in the deposition of one Mr. Sarno, a Los Angeles zoning inspector, the lawyer’s effort not to challenge but simply to become informed about the law and its application proved as fruitless as Joseph K’s fabled quest in Kafka’s The Trial. Q [Store’s lawyer]: What if it were only 1 percent of the location, could it still be an adult bookstore? A [Inspector Sarno]: You’re asking me to speculate. It’s conceivable. Again, every situation is different and should be weighed on its own. The same lawyer asked a different official to confirm or deny Mr. Sarno’s account of the work of zoning: Q: When Mr. Sarno was using the word “quantity” in terms of his questions to you regarding the standard to use in evaluating whether a bookstore was an adult bookstore or not, did you construe those questions to be related to the percentage of material involved? A: As it relates to his questions? Q: Yes. A: Yes, I do. Q: So is it your belief that there is no particular percentage of inventory of a bookstore that would qualify it as an adult bookstore under the Los Angeles municipal code? A: To the best of my knowledge, there is no definitive percentage within the municipal code. Q: So it is possible that if a bookstore was, for example, 30 percent adult item-by-item inventory and 70 percent non-adult item-by-

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item inventory it could be an adult bookstore under the Los Angeles municipal code? A: I believe that it could. Zoning inspectors, by-law enforcement officers, and licensing officials are not necessarily engaged in either conscious or unconscious projects to repress sexual speech. Through their mostly on-the-job training and through the legal machinery of the police powers of the state (Knemeyer 1980; Novak 1996; Lev and Valverde 2001), they acquire the ability and power to exercise a quasi-clinical judgment. Whether an establishment is an adult establishment is, they openly admit, a matter of judgment. This kind of clinical, nonquantitative judgment is made by such officials all the time, for example, in operationalizing broad terms such as “safety hazard,” “nuisance, ” or “aesthetic harm” (a term made legally effective in a Supreme Court decision on municipal powers to ban billboards). The administrative knowledge deployed in this type of regulatory work is job-based; but it does not amount to expert evidence in the usual sense. Some expert knowledge may be deployed (e.g., in making judgments about safety), but in many cases there is no science involved whatsoever, not even the common-knowledge physics and chemistry of nuisance inspections (Novak 1996). It is important to note, however, that the absence of science does not mean that the judgments made by zoning or nuisance inspectors are totally subjective or idiosyncratic. Just as courts admit that in workers’ compensation or negligence cases there is such a thing as “trade knowledge”—the kind of knowledge of risks and of customary procedures to govern risk thought to inhere in such people as factory foremen—so, too, in the field of police powers, judgments are not necessarily arbitrary or individual. Custom, the practices of officials who have been on the job a long time, and some secondhand knowledge of the judicial review process seem to combine with commonsense aesthetics and an everyday knowledge of moral standards not only to generate but to justify and authorize judgments such as the one made by Los Angeles zoning inspectors in the case of adult bookstores.8 Evelyn Ruppert’s carefully researched analysis In one of the cases about adult use zoning, Hickerson et al. v. City of New York (146 F. 3d 99, C.A. 2 [N.Y.] 1998), there was more expert knowledge of urban disorder introduced in court. The lengthy study generated by a consultant hired by the Business Improvement District of mid-Manhattan in the Times Square regeneration/clean-up campaign, however, also exhibited a highly hybrid epistemology and was thus closer to administrative knowledge than to social science. Surveys were done according to proper social science research methods, for instance, but those surveyed excluded owners and users of adult bookstores; along the same lines, tables were produced showing the number of residents over age sixty-five or below age eighteen, but these numbers were deployed rhetorically only, not statistically. See www.timessquarebid.org and also the decision of the Second Circuit Court in Hickerson (1998). 8

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of one urban regeneration project in downtown Toronto that combines security, aesthetic, and moral governance tightly into a single project shows, in more detail than it is possible to do here, how judgments about urban decay are made, often by urban planning professionals, but not through the consistent use of expert or scientific knowledges (Ruppert 2002). There is a marked hybridity in the aims of those who seek to clean up downtown spaces—they seek a broad range of goals, from aesthetic improvements to architecture and signage, through the replacement of run-down dollar stores by upscale shops to the displacement and exile of both “disorderly people” and unsightly physical traces or clues of inner-city poverty (Wilson and Kelling 1982). It is thus not surprising that the knowledges deployed to achieve these goals are themselves hybrid. In chapters 6 and 7 we will see how administrative knowledge of the disorders associated with drunkenness is brought to bear on legal situations in which the same kind of judgment—the quasi-clinical judgment required to operationalize the police powers that various institutions and officials have to define and to manage disorder—is constantly being made. British magistrates contemplating denying a license to a publican or Ontario liquor inspectors engaged in warning or shutting down a bar demonstrate the same epistemological logic as the Los Angeles zoning inspectors. In all these situations, minor officials produce quick judgments about what disorders will or will not be tolerated by creatively combining a bit of secondhand expert knowledge with a job-based sense of customary norms and a more or less intuitive sense of what the “public good” (the legal justification for granting municipalities powers to micromanage space) requires in particular cases. No doubt the examination of the deployment of administrative knowledges of disorderly spaces could be pursued across a wide variety of fields. In the next chapter, however, we temporarily leave behind the powers of municipalities to dictate “the time, place, and manner” of activities, turning instead to another hitherto virtually unstudied minor epistemological practice that is aimed not at spaces but rather at individual crimes and misdeeds. This is the knowledge of individual identity and individual character that is generated through exercising what I am calling the “forensic gaze”—a gaze that I show is not monopolized by either police detectives or private investigators or forensic scientists. Like administrative knowledge, the clues-driven gaze that is obsessed by the question “who done it?” is very pervasive, since it is found not only in forensic accounting’s pursuit of impersonal fraud and in murder cases but also in literary and artistic investigations of authorship. Rather than enumerate its diverse uses, however, in keeping with this book’s substantive focus—the regulation of vice—we will here engage in a detailed study of how this gaze works in relation to sexual vice.

CHAPTER THREE

The Forensic Gaze: Law’s Search for Moral Clues ✦ Much work has been done by feminist and queer scholars on the legal regulation of what is often called “the body.” Indeed, a large number of articles and books in the literature in this area use the term “the body” in the title, often to signal the use of some kind of materialist perspective to critique legal moralism. And yet when one looks at various legal moves to define and regulate bodily vices and bodily disorder, one rarely finds bodies as such, that is, whole bodies. What one finds is a proliferation of bodily parts, substances, and gestures. Reading Les Moran’s thoughtful account of the complex semiotics of plainclothes police officers’ surveillance of men’s public bathrooms, for instance, one can only be struck by the fact that “bodies” never seem to be the object of inquiry. Rather, police officers, both in their actual surveillance and in their recounting of it for the courts, dwell at length on the minute details of this and that specific body part, this kind of glance, that way of moving the lips or the hips (Moran 1996, chaps. 6, 7). That the devil (of immorality) is in the details, particularly in visible physical details, rather than in “the body,” seems to be the fundamental assumption of undercover morality-squad work, as Moran suggests and as will be corroborated by the trial transcripts examined below. Indeed, the immorality and indecency hunts carried out with the partly forensic and partly pornographic gaze of the “morality” squad have a Deleuzian air about them: The full body does not represent anything at all. On the contrary, the races and cultures designate regions on this body—that is, zones of intensities, fields of potentials. Phenomena of individualization and sexualization are produced within these fields. We pass from one field to another by crossing thresholds: we never stop migrating, we become other individuals as well as other sexes, and departing becomes as easy as being born or dying. (Deleuze 1993, 116) The legal proliferation of “phenomena of individualization and sexualization” can be seen as the reproduction, through law, of pornography’s differential fetishization of various bodily parts and acts (Williams 1989). As is well known, feminists have denounced this kind of frag-

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mentation, taking it as a strong indication of the patriarchal colonization of female bodies; and feminist legal scholars studying rape trials and other legal arenas have repeatedly pointed out that judges and prosecutors often engage in an unwitting pornographization of the very female bodies whose dignity is supposedly to be restored through the justice process. I have no political quarrel with this by-now-standard feminist complaint against legal discourses of female bodies; but I prefer to leave the denunciation of fragmentation for a more political occasion, concentrating here on documenting how fragmentation happens and noting its effects—effects that turn out to go well beyond the field of “sex” and “gender.” If we focus not so much on the “social construction” of bodily parts but rather on the knowledges deployed to gather information about bodily activities and vices, and make it count in the courtroom, we will see that if legal processes focus on blood or semen stains, isolated gestures, and other “bits,” this is not (or not just) because cops and prosecutors get pleasure from pornographic detail: it is also because the gaze that law requires its personnel to use in the gathering and presenting of “evidence” of indecency and immorality is the Sherlock Holmes gaze that is obsessed with physical detail, with clues, with bits left by bodies or on bodies. The forensic gaze can, and often does, reenact the fetishistic and voyeuristic practices of institutions from pornography to traditional European nude painting to advertising photography: but given that this gaze can be used for such nonsexualized practical pursuits as finding out who stole a car, as well as for the inquiries into the truth of sex conducted by vice squads, the forensic gaze deserves an analysis of its distinguishing formal features. Hence, when doing research on legal inquiries into sex, it is particularly important to remember that sexual objectification is not the raison d’ˆetre of the forensic gaze. To put it differently, there is no such thing as “the” male gaze: there are a vast variety of gazes that seek the truth in different ways, and just as the gaze of the clinician is different from the gaze of the epidemiologist (Weir 1996), so, too, is the forensic gaze distinct from other exercises of power/knowledge that intersect with or enable masculine domination but that also have other effects and serve other interests. Feminist analyses of legal processes tend to be gender reductionist, just as psychoanalytic inquiries tend to be sex reductionist. Here I attempt to analyze processes that are unquestionably sexual—they all involve semen—but without privileging or assuming the categories of gender, sex, and sexual identity. Highlighting the workings of a gaze that can and does have sexist and homophobic effects but that is not reducible to a sex or gender project thus contributes to replenishing the toolbox of critical legal studies of sexual regulation as well as furthering the sociology of legal knowledges.

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Developing Alan Hyde’s (1997) innovative analysis of the unpredictable legal construction of nonsexual bodily parts (a hand lost in a workplace accident; the cells extracted from one’s body and profitably used by a biotech company; the sperm donated to a fertility clinic), I would like here to de-center both sexuality and the body in my analysis. Paying attention not only to body parts or fluids associated with personhood but also to the variety of legal fates awaiting bodily parts, from severed hands to vials of donated blood, whose meaning and effectivity in law remains largely unmapped, allows us to see the bewildering variety of ways that bodies interact with legal powers and are reassembled, as it were, through legal processes. The three main case studies that make up the bulk of this chapter all feature one substance, semen, so as to illuminate the ways that the same physical substance is variously constituted in law depending on legal and extralegal circumstances. But I do not privilege the sexual self or assume its prior existence in my analysis. Even semen, that mythical life source and archetypal marker of sexual activity, does not have any essential character. At the fertility clinic it is reproductive material—sperm, not semen—with no connotations of jouissance; in the gay strip bar it is a sign of erotic abandon whose reproductive and scientific properties are irrelevant and thus invisible; in the forensic lab it is turned into a scientific object (a DNA sample) whose role is to solve mysteries of paternity as well as sex crimes; and in a rape trial it is evidence that a rape was indeed committed, having played this role long before genes or DNA were discovered. Realizing that even the quintessential marker of male sexuality is not univocal is important if we are interested in mapping the process by which some bodily substances, sometimes, are given legal respect as emblems of personhood, whereas at other times not only nonsexual but even sexual bits can appear, unpredictably, as either objects of property, traces of crimes, or even places to be searched—as in Alan Hyde’s example of the judge who ordered a defendant’s “apartment and vagina” to be searched for drugs (Hyde 1997, 4). As Hyde’s analysis shows, sexual desires and bodily zones traditionally associated with sex and reproduction have been more likely to be treated with a Kantian respect for the person than other bodily substances and parts, particularly if these substances and parts are male. In this, law is following basic Western cultural norms. But law’s constitution of sex and sexual personhood does not follow a single logic; furthermore, the legal constitution of sexual entities is cross-cut by many other vectors of governance, not only the oft-mentioned ones of race and gender but also specifically legal concerns such as property and inheritance rights. De-centering sexuality in our analysis (even when sexual processes or sex statutes are at play) amounts to bracketing the

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usual assumptions about the link between sex and personhood. Thus we can begin critically to analyze the pornographic fragmentation that many legal processes produce without thereby reproducing the old humanist illusions about the complete, holistic, self-identical body. I should perhaps clarify that I am not promoting fragmentation and objectification here, as some friends and disciples of Deleuze do. The romanticization of excess and fragmentation promoted by Georges Bataille is, in my view, incompatible with feminism. Here I have distanced myself from the standard feminist critique of “the male gaze” because in my research I have encountered no one male gaze but rather a series of divergent gazes that use different knowledges. But finding that “the male gaze” is a misleading abstraction does not mean that I do not share the common female experience of feeling degraded and used when either a text or a male passerby insists on reducing ourselves or other women to a pair of breasts. My question to other feminists and to critical students of legal processes is this: Do we have to flee from the sexual harasser into the equally masculinist arms of the classic humanist self and/or the wholesome, self-controlled body of Reformation Christianity? Does “the body,” whose supposed unity is so dear to us, in any case exist anywhere? Or is it, too, an abstraction, a concept in the Marxist sense? Is it not possible to remain critical of pornographic and harassing practices but remain interested in pursuing the possibilities of “bodies without organs” (Deleuze 1993)?1 Could we not document the way that particular bodily substances and particular bits of flesh are constituted in law without immediately running to the safe comfort of “the body” and its associated “self”? The relation of various physiological events to the human experience of embodiment is, after all, highly variable, across cultures and across historical periods (cf. Laqueur 1990; Gallagher and Laqueur 1987; Martin 1987). It may thus be helpful, for those interested in post-humanist feminist projects, to consider the variety of ways that different substances, objects, performances, and gestures are constituted in legal work without immediately effecting closure through recourse to the humanist myth of “the” body.2 And when analyzing how various bodily bits and substances appear as this or that kind of object to a variety of legal and quasi-legal personnel, at the level of the sociology of knowledge, what comes into view is a Combining feminist and queer political projects with Deleuzian and Niezschean insights on embodiment has been greatly facilitated by the work of Judith Butler (1990, 1997) and Elizabeth Grosz (1994, 1995), but in some respects both these thinkers, at least in their earlier, best-known works, tended to operate by taking “the body” somewhat for granted, as do many interpreters of Nietzsche. 2 For a critique of “the self” that has strongly influenced my analysis in this chapter, see Rose 1996, chap. 8. 1

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previously unstudied gaze, a particular way of examining not so much bodies as traces of bodies that is perhaps best exemplified in detective work but that is also found in many situations outside police work: the forensic gaze. Those who use the forensic gaze to look for clues so as to collect evidence and interpret it sometimes, as they go along, also produce judgments about the meaning of the evidence. In some cases, however, as when vice-squad officers testify in court, a division of labor is established between the presentation of the clues/evidence and the interpretation. Not surprisingly, examining courtroom testimony by vice-squad officers suggests that the legal line between witness “evidence” and judicial “findings” constantly deconstructs itself. Like “drunkenness”— something that people think they can directly see but that in trial testimony is revealed as a theory-laden conclusion or opinion derived from an open-ended series of observations (Levi and Valverde 2001)—legal entities, like “lewdness,” “indecency,” and “sexual purpose” turn out to be abstractions or theory-laden conclusions constructed out of indefinite sets of visible signs. By focusing on physical details to an obsessive degree, the forensic gaze tries to make concepts and theories visible (Latour 1987), concrete, and objective. But this effort—like the courts’ task of making justice real and visible in the workings of a law that perpetually undermines and defeats justice (Derrida 1992)—never succeeds. This constantly failing effort to make legal truths physically visible, to establish a purely empirical basis for a legal judgment that, especially these days, shys away from making strictly moral or philosophical pronouncements, underlies, or at least fuels, the great desire that police and other seekers of legal/moral truths have to acquire ever more sophisticated technologies with which to discern and, most important, to record, document, and visually present objective, factual, incontrovertible evidence that criminal and moral laws have been broken by particular individuals (Cole 2001). T E L LTA L E S TA I N S : T H E P RO D U C T I O N O F S E M E N AND THE TRUTH OF SEX

The visibility of female breasts is regulated, as we have seen in the previous chapter, through rules aimed not at preventing harm to women but at setting limits on what the male gaze ought to see in public places. Even where harm to women is acknowledged, as it was in the 1992 Butler decision of the Canadian Supreme Court, this harm is not itself determinative: it functions as one component of the “attitudinal” harm to men or “society” or both that is thought to be caused by sex work as well as pornography. Despite the fact that women’s agency is being ac-

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knowledged in many legal sites, in the field of obscenity and indecency, sexuality, like Bishop Berkeley’s famous tree falling in the forest, does not seem to exist in law unless a man is there to hear it, or, more important, to see it. Women’s experience is not a valid knowledge in the sort of inquiries analyzed in this chapter. But is men’s experience thereby a valid source of knowledge? What about the legal status of bodily parts and experiences associated with masculinity? How are they constituted through legal processes? Legal scholars documenting the operation of homophobia in law have told us a great deal about the constitution of the deviant male sexual body, the bodies of English buggery law, and American sodomy laws (e.g., Moran 1996; Stychin 1995; Eskridge 1999). And, of course, feminist critics of the operation of rape laws have often denounced the way that legal processes privilege and fetishize both the penis and its liquid essence, semen. But much less has been said about male bodies engaged in other kinds of indecent or otherwise improper sexual activity. Here we will examine three sites on which a privileged, culturally charged male bodily substance—semen—was constituted for legal purposes, mapping how the law of semen works outside the better studied realms of sexual assault/rape law and sodomy/buggery law. The first mini–case study involves a curious substance reminiscent of the medieval “two bodies of the King” theory—a substance described in official discourse as “the President’s semen.” The second study concerns a Toronto gay strip club in which strippers produced semen for the entertainment of the customers in regular weekly events dubbed “Monday night sperm attacks.” Finally, the third site for our study of the law of semen is a trial held in the suburbs of Toronto in 1998, involving charges against a woman running a dominatrix business. In all these sites, a gaze that excludes the experience of the people in question but is not “expert” or scientific can be seen at work, intent on looking for moral clues. The first site to which we will direct our gaze, then, is the White House during 1995–97 or more specifically, the back hallway behind the Oval Office that, according to Monica Lewinsky, was the main location for the sexual (according to the Starr Report [Starr 1998]) or merely “intimate” (according to Clinton) conduct between Lewinsky and Clinton. Whether the relation between the president and the young woman working at the White House was sexual or not was, of course, key to the notorious unsuccessful impeachment proceedings. It is important to recall, however, that, unlike old-fashioned rape cases insisting on penetration as the marker of real sex, the Starr inquiry was not governed by any statutory or common-law definition of sexual impropriety; indeed, its original mandate was to look into financial improprieties,

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not bodily ones. Thus sex and intercourse were not the issues at the outset. However, any potential that the Starr inquiry had for pursuing the question of how one decides if a President is unfit for office through more strictly ethical discourses was quickly defused by Independent Counsel Kenneth Starr’s insistence that, because the President, during the course of the Paula Jones sexual harassment case, had denied having sexual relations with Lewinsky, the complex question of integrity among high officials could be reduced to the old question of the truth of sex (Foucault 1980). In keeping with Foucault’s thesis about the deployment of sexuality, Starr told the nation, and indeed the world, that the truth about the president’s subjectivity and personal identity was a sexual one. The President’s subjectivity, however, was not directly available to Starr’s gaze or to the voyeuristic scrutiny of the citizens, since rows of lawyers stood between the president and the would-be confessors. And so the inquiry did not pursue the kind of deep inner truth that Foucault highlights as the privileged object of both old-fashioned Catholic confession and modern disciplinary knowledges. Instead, the inquiry took a more objectivist and, specifically, a more forensic, direction. In the amateur forensic inquiry conducted by Starr, the truth about the President was assumed to be a sexual truth—in keeping with Foucault’s famous thesis about the history of sexuality (1980). But a feature of the inquiry not captured by Foucault’s framework is that the truth of sex was, in turn, assumed to be found not in the inner self but rather in the positivistic realm of “clues,” namely, a semen stain on a dress. Moral, legal, and political rationalities are, of course, also present in the Starr Report, which, like most reports produced for government purposes, is hybrid both in its aims and in the knowledges deployed in it; but it is the forensic gaze that generates the much-cited triumphalist account of Clinton’s vice near the beginning of the report, the passages that were quoted, paraphrased, pored over, and chuckled over by the media and the public. Perpetuating the ancient belief that real truths, even truths about morality and politics, are those that leave interpretable physical traces, Starr places “physical evidence” at the very beginning of his famous tome, as if it were an autopsy report rather than an inquiry into politics: 1. Physical evidence. Physical evidence conclusively establishes that the President and Ms Lewinsky had a sexual relationship. After reaching an immunity and cooperation agreement with the Office of the Independent Counsel [OIC] on July 28, 1998, Ms Lewinsky turned over a navy blue dress that she said she had worn during a sexual encounter

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with the President on February 28, 1997. According to Ms Lewinsky, she noticed stains on the garment the next time she took it from her closet. From their location, she surmised that the stains were the President’s semen. Initial tests revealed that the stains are in fact semen. Based on that result, the OIC asked the President for a blood sample. (Starr 1998, 46) That the presence or absence of sex was to be proven by the presence or absence of semen might have been an uncontested assumption, given the privileging of male physiology in definitions of sex. Early in the inquiry it appeared that no traces of semen would be found, since Lewinsky testified that most of the time that the two of them had erotic contact, Clinton was careful to stop the proceedings before ejaculation. Later, however, Lewinsky admitted that, although initially reluctant to produce semen, Clinton eventually worked up to that particular act. Her words about the erotic encounters would not have sufficed to clinch the matter, however, since in this, as in so many other situations, a young woman’s word is always subject to doubt. But she had in her possession the commodity that was universally regarded as speaking the truth: a blue dress, carefully classified as “from The Gap,” with tell-tale semen stains. Clinton, however, offered a different truth about sex. He claimed to believe that it was not the presence or absence of semen that was determinative, but rather the particular way the semen was produced. His relation with Lewinsky was inappropriately “intimate,” he admitted, but it was not, strictly speaking, “sexual.” Why not? Because it did not involve intercourse. Starr was annoyed by this quasi-theological hairsplitting: “The President maintained that there can be no sexual relationship without sexual intercourse, regardless of what other sexual activities may transpire. He stated that ‘most ordinary Americans’ would embrace this distinction” (Starr 1998, 53). If the media coverage is any indication, most Americans did not agree that only intercourse counts as sex. However, from the everyday American expression “going all the way,” which although in disuse today was common currency when Clinton was young, one can see that the distinction between intercourse and other forms of sexual activity that privileges the former over the latter in the hierarchy of sexual truth was not completely idiosyncratic. It is not possible to determine just what Americans thought about the exact weight of the semen-stained dress in the adjudication of the Lewinsky-Clinton encounters, since other revelations (perhaps, most famous, the cigar in the vagina episode) complicated the picture by intimating that a certain amount of trendy deviance

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could coexist with a 1950s, petting-era sensibility about the hierarchy of bodily parts. But although Clinton had some cultural tropes (mainly the distinction between “petting” and “going all the way”) supporting his way of drawing the line, it was plausible for Starr to argue that semen equals sex regardless of how it gets on a dress, since, as we shall see in our other two case studies, the presence of semen is, in other contexts, taken as an infallible sign of the presence of sex. A key point regarding the sociology of (quasi-)legal knowledge is that, although Starr was and is a lawyer, the account of sex he provides in the report does not follow any of the usual legal logics. A contrast may be helpful here. The risk of harm test discussed in the previous chapter is a thoroughly legal tool. Like many other legal inventions, it joins the objective to the subjective; it manages to paper over the difference between classic jurisprudential intentionality and utilitarian effects; and, perhaps most important, it works to preserve moral injunctions in the midst of a post-moral discourse of risks. Since it enables these key contradictions of legality to live on, unresolved but contained, it is thus, in a sense, the indispensable legal tool of our time, as Harcourt (1999) has argued. By contrast, the pursuit of strictly physical clues, traces of bodily activity imagined as the only reliable, nonculturally specific signifiers of crime or immorality or both, is the key feature of the distinct epistemology of the forensic gaze. As Simon Cole has argued (2001), the forensic preoccupations that occupy low-status, merely “technical” personnel, such as fingerprint experts, are having an increasingly influential impact on legal outcomes. This is partly because the technicians and providers of less than scientific knowledge are aware of the general discrediting of high-status knowledges that has taken place over the last few decades, and they have seized the moment to present themselves as more reliable than scientists precisely because they are less educated and hence less theory-driven, more strictly technical. The growing fascination with forensic workers of every kind, from forensic anthropologists digging up genocide victims’ bones (Michael Ondaatje’s novel, Anil’s Ghost, to give only a highbrow example) to the work of technicians producing 3-D models of murder victims’ heads through computeraided design, is undoubtedly related to the pluralization of expertise and contestation of welfare-state, high-status knowledges documented by governmentality writers (e.g., Rose 1999). It is also in keeping with the difficulties created by multiculturalism for moral regulation. What counts as a sexual offense may be culturally specific, some parties have argued before courts; but the significance of a hole in the skull or a semen stain is not thought to be culturally mediated at all. The clue is there for all to see, objective, culturally neutral. The decline in psychiatry’s authority and the concomitant rise in pres-

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tige of experts on clues can be documented not only in criminal justice, as Cole does, but also in fictional representations. The godlike truth about the psychotic killer’s inner self presented by the forensic psychiatrist at the end of Hitchcock’s Psycho, to give a well-known example, contrasts sharply with the dispersal and partial reversal of psychiatric expertise in the 1990s blockbuster movie Silence of the Lambs. In Silence of the Lambs the only psychiatric expertise shown to have both moral and scientific credibility is that held not by medical doctors (one of whom is a bumbling fool, the other a notorious psycho-killer), but rather by the FBI’s special Behavioral Science Unit, which uses psychological science tools but is largely driven by the clues-based epistemology of detective work.3 The epistemology of the clue is familiar and indeed appealing to most academics, since murder mysteries are the most popular lowbrow genre in universities: but it has drawn virtually no scholarly attention. In an article of great significance to the sociology of legal knowledge, the intellectual historian of early modern Europe Carlo Ginzburg demonstrates that Sherlock Holmes, Freud, and the Italian art historian Morelli can be regarded as three relatively independent pioneers of a knowledge format developed at the end of the nineteenth century that does not focus on scientific “types” (as do the better-known knowledge formats of eugenics and the sciences of the psyche) but rather on signs, symptoms, or clues of individual identity (Ginzburg 1987). Morelli, whose work Freud read with much interest, developed a complex system for identifying the author of contested paintings based on the collection of “clues” about the individual artists’ identity; this system or code was remarkably similar to the criminal-identification method developed by Paris police official Alphonse Bertillon. Among other similarities, both Bertillon and Morelli were fascinated by ear measurements as tools for discovering and measuring individuality. On his part, Sherlock Holmes at one point convinced Dr. Watson that by examining the details of a particular severed ear sent in the mail to a respectable spinster he could solve an otherwise totally baffling mystery. In this, as in many other stories, he educated the doctor in the kind of lowly forensic knowledge, unknown to medicine, that Bertillon, in his Paris police lab, was pioneering in real life. The representation of psy knowledges in Silence of the Lambs shows that, as I have argued elsewhere, hybrid knowledge formats relying on a variety of not always reputable authorities are often regarded as more credible than single-source, purer knowledge formats (Moore and Valverde 2000). The psy training of both the young female officer, Clairice Starling, and of the head of the FBI’s psy unit, John Crawford, are amply supplemented by police training, moral courage, and, as the opening sequence on the FBI’s crosscountry training course demonstrates, old-fashioned physical prowess. 3

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Most studies of forensic techniques (and their often more innovative and influential portrayals in detective fiction) identify the forensic gaze with the gaze of science: Ronald Thomas’s excellent study of the links between criminological science and detective fiction, for example, does not distinguish between scientists and characters like Sherlock Holmes, who used science but not for scientific purposes or within a scientific logic. For Thomas and for other literary analysts of forensic projects, all practitioners of forensic investigations appear as “experts” (Thomas 1999; see also Bell and Daldry 1990). Fingerprints and other bodily fluids and bits, however, can, of course, be treated scientifically, as they are by the biochemistry technicians who work in labs: but in the context of regulating morality through law and law enforcement, they are not usually scientific objects. Science is used to determine that this stain is human O blood, but science does not control the legal fate or the meaning of the stain in question. In police work and in courtroom testimony, stains and other traces are, as Ginzburg points out, “clues,” that is, traces of an individual’s silent progression through a crime scene. The forensic gaze, while borrowing and sometimes needing scientific information, does not follow a scientific logic. The scientist is interested in the likelihood that a person with such and such characteristics is more likely to re-offend than the average; the forensic technician, by contrast, does not deal in numbers, probabilities, types constructed through induction, or risk factors. And whereas the scientist studies the present, or sometimes the past, mainly with a view to predicting the future, the forensic gaze deals only in particular events, events that are always in the past. In terms of temporality, then, forensics is more akin to the criminal law than to science, even though it is distinct from law precisely in being concerned with physical visible traces and bits rather than in abstract, textually mediated concepts, doctrines, and rules. The epistemology of clues developed in psychoanalytic accounts of “case histories” of unique individuals and in fictional accounts has prospered in modern-day American criminal justice, partly because movies and novels about crimes have become increasingly focused on the use of technical procedures to identify “who done it.” Courtroom dramas still draw audiences, but forensic techniques seem to generate the greatest number of new TV shows or paperback mysteries. An example is the quasi- or infra-scientific knowledge of “serial killers” supposedly authored by the FBI’s John Douglas (the real-life model for the Jack Crawford of Silence of the Lambs). A notable source of both expert and popular discourses on the psychology of crime, the FBI’s special unit for serial killers and its true-crime and fictional representations have disseminated exactly the same theory about “serial murder” that Morelli had, more than a century ago, about art authentication: the

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view that each serial killer has a distinct, unfalsifiable artistic style, or “signature,” and can thus be identified through involuntary physical clues (Jenkins 1994). In addition to fitting in very conveniently with the decline of confidence in welfare-state experts such as psychologists, theories that identify truth seeking with searching out the clues unwittingly left by agents shedding bits of their bodies or psyches on the scene of the crime may owe their persistence to the fact that forensic work marries technological optimism (especially about computer databases and computer imaging technology) with a lingering belief in the detective’s intuition. Both fictional and true-crime accounts of the triumphs of forensic science never fail to remind us of Hercule Poirot’s constant refrain, namely, that the quality of the clues is only as good as the hunches and the nonmedical insights into human character that lead detectives to both collect the right clues and then to make sense of them.4 Whatever the reasons for the persistent appeal of the activity of looking for clues, that the Starr Report blithely assumed that the truth of sex—and hence the political truth about the president—could best be discerned through clues is an eloquent testimony to the remarkable influence of the forensic gaze. Indeed, the failure of the myriad commentators who talked about it to question its forensic knowledge format, taking it for granted as the right format to determine political truth, is the best clue indicating the persistent power of the prescientific knowledge formats that Ginzburg calls “the conjectural sciences.”5 A PA R E N T H E T I C N O T E O N F E M A L E P L E A S U R E

The Starr inquiry found that Ms. Lewinsky, who was described as constantly seeking out time with Clinton and initiating sexual contact, experienced orgasm twice during the series of hurried encounters (Starr 1998, 55). This fact was not theorized in any way but simply presented While Sherlock Holmes represents the objectivist extreme of the forensic gaze, Agatha Christie’s Hercule Poirot distinguished himself from his famous predecessor precisely by minimizing the significance of physical traces (such as the cigar ashes so lovingly inventoried by Holmes) and emphasizing the psychological clues evident in the behavior and facial expressions of the criminals. Both characters, however, are constantly engaged in reading physical (or, in Poirot’s case, verbal and physical) clues about individual acts in the past. 5 The historian of psychology John Forrester has argued that psychoanalysis differs from more positivist scientific psychological projects precisely in the conjectural epistemology that he dubs “thinking in cases,” and that he says owes a great deal to legal and especially law school logics. The homologies between law school casebooks and psychoanalytic cases are certainly worth pursuing, but Forrester ignores Freud’s own preference for comparing his methods to those of Sherlock Holmes’s methods (Forrester 1996). 4

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without comment, some pages after the more famous Gap dress and the other forensic evidence. One is left with the impression that Ms. Lewinsky’s pleasure or lack of it was of no legal or moral significance. This is, at one level, not surprising: as Thomas Laqueur and other scholars have noted (Laqueur 1990), the biological revolution of the early nineteenth century involved a rejection of the older view of women’s sexual organs and functions as largely parallel to men’s, and a growing acceptance of the belief that active sexuality inheres in men only. Whether sex is defined by the presence of semen, as Kenneth Starr believes, or by intercourse, as Clinton claimed, female experience is obviously not determinative. And yet, even in the most masculinist versions of the “two-sex body” theory, women’s bodies are by no means unimportant, since they are required both as visual triggers and as sensuous receptacles for male sexual desire. In regard to the key role of receptacles, Starr would have had a weak case for impeachment if Lewinsky’s dress had not literally caught the semen—described not as Bill Clinton’s but as “the President’s,” as if a President could emit semen in the same way he signs executive orders. But in addition to its receptacle function, the female body that is the object of the lewd male gaze plays a different role in the constitution of sexual truth, in law as outside it: the “foil” role. Discussions of female physiology, from The Hite Report to many courts of law, often contrast the supposedly objective, visible truth of semen emission to the inherently deceptive mysterious processes of female bodily pleasure. The popular discourse on faking orgasm is only one of the components of this complex assemblage of knowledges—some biblical, some physiological, some cultural—through which women’s bodies, while sometimes representing truth itself (Derrida 1979), simultaneously signify not only untruth but deliberate falsehood. This dialectic was one of the unexpected features of the next site to which we will turn our attention—unexpected because, having chosen to analyze the trial of the managers of a gay male strip bar precisely so as to inquire into the legal fortunes of signs of masculinity, whether women do or do not fake orgasm was not something I was expecting would be discussed. T H E “ M O N D AY N I G H T S P E R M AT TA C K ”

To continue analyzing law’s quest for clues of moral and sexual truths, let us turn from the White House to a Toronto lower criminal court that heard the long-winded trial of the gay strip bar Remington’s in 1997.6 6 I would like to thank Edward Greenspan, Q.C., who acted as defense counsel to Remington’s, for allowing me access to the trial transcript. Page numbers are not given,

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This bar, unusual in being located on Toronto’s main street instead of in a back alley in the gay village, decided to drum up business on the usually slow Monday evenings by promising that the strippers would, on this night, not only strip but also masturbate on stage. Unfortunately for the bar, the advertisement reached the eyes of the local vice squad, which then proceeded to investigate and eventually lay charges. Facing a number of charges under the bawdy-house laws (indecent acts and prostitution), the first line of defense for Remington’s counsel (Edward Greenspan, Canada’s most famous criminal lawyer) was to cast doubt over the police testimony about semen being actually produced on stage by “dancers.” Reading the trial transcript, it becomes apparent that although the Starr theory that semen  sex was nowhere explicitly stated, this equation functioned as an a priori truth, unquestioned even by the leave-no-stones-unturned defense counsel and his many expert witnesses. Greenspan did not argue that masturbation for pay is not real sex: rather, he sought to create doubts in the judge’s mind about the presence of the telltale substance. Much was thus said about the lighting conditions under which the undercover moralitysquad officer observed the stage show; but the crucial element of the defense was to note that the performers routinely used oil or Vaseline to help them masturbate. During cross-examination Greenspan asked undercover officer Bruce Newman to describe Vaseline. Newman stated that Vaseline is yellowish, and because the substance he saw was whitish it could not be Vaseline; it had to be semen. Greenspan then moved into dramatic mode: whipping a bottle of Vaseline extra-strength out of his pocket, he calmly explained that he uses this every day and that, unlike regular Vaseline, it is whitish (June 25, 1997).7 The second line of defense was to argue that even if semen were present (and hence sex), the morality-squad officers who had laid charges against the gay club were acting homophobically and thus, under Canadian law, in an impermissibly discriminatory fashion, since female strippers who masturbate on stage are not generally charged. In pursuit of this argument, the undercover cop who had visited the gay bar for nine Monday evenings, Bruce Newman, was asked whether he would have laid charges against a heterosexual establishment featuring women dancers doing the same sort of thing as the male dancers at Remingbut for each citation I provide the date of the testimony. Judge Young eventually released two separate judgments, each dealing with one of the two managers against whom charges were still outstanding. These were R. v. Potts and R. v. Mckeigan. 7 Greenspan is middle-aged, white, overweight, and, as he had occasion to mention in the trial, has been married for twenty-five years. The likelihood of his own body being contaminated by the reference to his using a substance of suspicious metonymic reputation was thus small.

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ton’s. Newman claimed that he was not acting in a discriminatory fashion because, after all, the women who strip in other bars don’t produce sperm. Generally what I have observed is that they [female strippers] rubbed their vagina with their finger, or they’ll spread open their vagina, but not a continuous masturbation for a period of time, until they cause an orgasm that some type of substance leaves their body onto the stage or whatever else. (June 26, 1997) A different, converging argument that the officers presented was that there was no bias against gay bars not only because women, in general, do not produce semen but because women strippers are, in any case, only faking it. This argument implicitly relies on the idea that without semen one cannot tell if sex has happened, of course, but it adds a moralistic judgment about female deceptiveness to the more forensic, objectivist perceptions of semen or its absence produced in Newman’s remarkable counterfactual testimony. Thus another morality-squad officer, De Lottinville, was questioned at length about why the sight of women masturbating on stage for the delectation of the heterosexual male gaze does not disgust him. Clearly ill at ease, the officer claimed that women who strip for a living are not actually masturbating but are merely pretending to do so. The impression was thus left—and remained unchallenged by defense counsel—that the presence of semen is the true marker of sex and that, lacking this unambiguous signifier, women’s bodies, even when examined in pornographic detail by morality-squad officers, will fail to deliver legally determinative clues. The police testimony was not purely forensic, however: the myths about woman as the lying Eve that underlie the “faking it” discourse were clearly at work to support the police’s view that women strippers, lacking either the physical capacity or the intent to actually have a visible orgasm, or both, did not infringe the criminal code as gravely as male strippers. A couple of the numerous expert witnesses who testified in the trial were asked to comment on the symmetry or otherwise of male and female stripping performances, but nothing conclusive emerged in that testimony. The medical experts, being scientists rather than forensic technicians, generally insisted that one cannot read psychological deviance from bodily clues. Furthermore, they were experts on male deviance and so had nothing to say about women’s bodies or female sexuality. To present evidence of sexual-orientation discrimination the experts would have had to compare heterosexual performances to the acts at Remington’s, and they were not about to do that since women’s bodies did not fall within their area of expertise. While ultimately un-

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helpful to the defense, however, the medical experts also resisted the prosecution’s attempts to enlist their expertise, by steadfastly refusing to agree that one can look at certain physical performances and read deviance directly off the body. For the prosecution, inquiries into the responses of the readers/viewers, or into the psychology of striptease, need not be undertaken. The truth is out there, in little details, like the distance traveled by a bit of semen. The only medical evidence presented at the trial was put on the record by the defense, when a psychiatrist specializing in voyeurism and exhibitionism was asked to comment on the health risks of strip bars. The psychiatrist, testifying, interestingly, as a physical rather than a mental specialist, told the court that the greatest physical risks in such bars are the result of smoke from cigarettes (“Cigarette smoke, you know, it’s carcinogenic!”) (March 25, 1998). But this brief attempt to ridicule the moralism of the law, as well as the half-articulated fears and myths about gay men and HIV in the subtext of some of the officers’ testimony, was bound to remain isolated, given the constraints of legal inquiries into indecency and sex, inquiries that, as was shown in the case of the Canadian Supreme Court’s decisions on lap-dancing (chapter 2), may mention physical health risks but rarely make these primary or determinative. The defense also sought to pursue the inquiry into gender and sexualorientation bias among police officers, and in the law more generally, through testimony given by community-based experts. When asked to comment on the differential prosecution of gay bars by vice or other police officers, however, the community leaders who were brought in to say that the gay male community did not consider the Monday night event offensive turned out to be handicapped to speak about sexual difference, and hence discrimination and bias, precisely because they are openly gay men. The heterosexual male officers8 testifying at the Remington’s trial had no trouble discussing female and gay male sexual acts, and interpreting homosexual gestures for the court, with great authority. The gay male community leaders, by contrast, like any other representatives of exoticized minorities, had to take a more humble epistemological standpoint. They could only speak about themselves and their own community. George Hislop, a venerable community activist, apologized for his inability to rise above his particular position in order fully to assume the expert-on-sex position: “I am not that conversant 8 That the investigating officers were all heterosexual was a fact brought out in crossexamination, but this was not interpreted as biasing the officers against gay men despite Greenspan’s strenuous efforts to demonstrate that they did not understand gay male sexual culture.

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with vaginas, and the effect of putting a finger in the vagina, and whether this is offensive or not” (September 2, 1997). The defense counsel’s attempt to prove bias by highlighting how morality officers differentiate between gay male and heterosexual establishments by reading male bodies as more transparently sexual than the deceptive bodies of orgasm-faking women might have benefited from feminist expert testimony about women’s bodies. There is a good chance, however, that such expertise would have been deemed irrelevant by the judge, since, after all, no women’s bodies were at issue. Thus, while the heterosexual male officers were able to testify from a universal subject position about gay men, women strippers, and sexual difference in general, the defense had no possibility of challenging such universal statements by counter-universals; it could only offer the particularistic minority views of gay community members. The psychiatrist who tried to offer non-particularistic testimony about the health risks of bars by shifting the focus completely away from sex and onto smoke was the closest thing to a universal subject the defense could deploy: but all he offered was scientific information about other risks (smoking, exhibitionism) that was deemed irrelevant to the inquiry into the meaning of certain nonscientific bodily clues. The lack of effectivity of the psychiatrist’s testimony (given in very articulate, authoritative, and yet accessible language) highlights the point made earlier about the dominance of the hybrid forensic gaze over the purely scientific gaze. Scientific facts are, of course, deployed in courts all the time, but in cases concerning immorality these only become relevant if integrated into a narrative of individual moral misdeeds that does not follow a scientific logic. Apart from these internal epistemological dynamics, there are other, larger social reasons that explain why in this case, as in the rap obscenity case mentioned in chapter 2, the burden of cultural proof lay completely with the accused. The police could rely on old, established tropes about sexual difference to persuade the court that, in contrast to the inherent ambiguity of female strippers’ bodies, the male bodies in question were truly sexual because they were actually ejaculating. The question of the facticity and the significance of orgasm—male orgasm, in the case of Remington’s—brings us into the domain of that wellworn trope of the perpetually orgasmic, always hard male body of pornography. This trope had been deployed by the bar in its advertising with a clever self-conscious irony that was wasted on the police (and on the court). The “Monday night sperm attack” advertised in the local gay press, as the gay male witnesses in the trial attempted to explain, evokes that mythical pornographic male body, but also, simultaneously, makes fun of it, in a classically camp, self-undermining statement. Irony and camp not being the law’s strong points, however, the advertising

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was taken as an unambiguous indicator of the bar’s intent to promote as much sex as possible, and the self-deprecating irony was totally lost.9 The trial transcript generally replicates the pornographic trope of the endlessly orgasmic male body producing fluid without limit—evoked, however, not through pornography’s first-person rhetoric and sexy photographs but rather through a slow accumulation of forensic-style, positivistic description of long lists of specific bodily actions. The first day of the trial featured hours of such testimony from the morality-squad officer who had been attending the “sperm attack” event for nine consecutive Mondays and had, on each occasion, written up extremely detailed notes of everything he saw. Some samples of this note-based testimony will suffice here: [A dancer] sat on the box [on the stage] and began masturbating himself. He continued masturbating during the second song. He then continued for two more songs. At this time he had, I guess what you would call, a semi-erection. While he was doing this, he suddenly arched his back, and he ejaculated a very small amount while lying on his back on the stage. (Officer Newman, June 24, 1997) The prosecutor, dissatisfied by the smallness of the semen production, attempted to evoke the classically orgasmic male body of porn by prompting the officer, “How far—where the ejaculate went, how far is that back from the stage?” The obvious assumption prompting this question is that the illegality of the situation was directly proportional to the amount of semen and to the distance it traveled. Later the same day, the same officer describes another dancer: I observed the dancer then do this body-style dance [sic] to music that was playing for this customer. During the time when the music was playing, the dancer began masturbating himself. He fondled the customer, who was clothed, touching the customer, and allowing the customer to touch him, to touch his genitals. The judge, confused by the presence of two masculine pronouns in an account of erotic exchange, interrupts: 9 In the same way, during the trial of some Toronto women for liquor infractions alleged to have taken place at a lesbian bathhouse event, the name chosen by the organizers for their event (“Pussy Palace”) acquired an oddly deadpan pornographic meaning, losing its campy, in-joke quality. The extremely serious, scholarly looking male judge who delivered the lengthy judgment in this case seemed to have trouble uttering the words “Pussy Palace,” and, when he did, the almost completely female audience filling the courtroom became visibly uncomfortable (personal observation, January 2002) (see R. v. Hornick [2002] O.J. 1170).

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The Court: Sorry. Who is touching the genitals? Somewhat later, the cop provides a different kind of detail—not about the body but about its surroundings. Following the cinematic practice of generating a “reality effect” through the provision of copious factual detail, the officer testifies: The dancer then sat back on this pedestal on the stage, and began masturbating, facing out towards the audience. He sat with his legs spread, into the fourth song that began playing. I recognized this song as “Stairway to Heaven.” Again, even in the written text (as opposed to the chuckle-filled courtroom), one can see the purposeful irony of choosing “Stairway to Heaven” as one of the songs to which the dancers masturbated literally vanish into the deadpan objectivism of police testimony. In the transcript, there are a few places in which the constitution of a perpetually hard, pornographically powerful male body is interrupted by a more pedestrian, even pathetic, image: the male stripper who just can’t come. Several of the performers were said, by both police and customer witnesses, to be unable to generate any semen at all even after much oiling and concentrating. The dancer whose penis is clinically described as being in a state of “semi-erection” clearly found hard masculinity too much work. Immediately after noting a dancer’s “semierection,” the officer went on to describe what turned out to be a nonclimax: “While he continued to do this [masturbating], he was not able to obtain an erection, a full erection, to make himself ejaculate during the three songs, and he left the stage after the third song.” At various points in the trial, the police generated images of semen flying over the stage and landing on customers’ heads. However, the testimony, when closely read in its entirety, consists mostly of accounts of small amounts of semen being generated—or even a “very small amount” of semen, as the officer’s first vignette, cited above, has it. These small amounts of stuff were generally said to land on the performer’s leg or abdomen or, at most, on the stage floor, having gone a very small distance away from the body that produced it. The production of semen during “Sperm attack Mondays” did not live up, it seems, to the heated imaginations of morality-squad officers and prosecutors. That such evenings were, for the performers, more work than pleasure becomes clear, however, only if one carefully examines offhand remarks highlighted neither by lawyers nor in the judgment. The officer’s testimony about the dancer who just couldn’t come, even after three songs, elicited no response at the time and was not taken up subsequently by any of the legal personnel. Also left untheorized was an extremely tell-

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ing statement by a regular customer to the effect that he and other customers used to sit back and bet on whether a particular dancer would manage to ejaculate, “as if we were watching a sports event.” The sports analogy offered by the customer10 reminds us of the difficulties men experience in living up to the trope of limitless semen emission, a trope disseminated in some legal contexts as well as in pornographic magazines. Feminists have often noted how much labor is involved, from day to day and evening to evening, in the reproduction of femininity, but much less has been said about the perhaps equally strenuous labors of maintaining the fictions of “hard” sexual masculinity. Quasi-pornographic images of excessive bodily fluid production dominated the trial itself and the media coverage of it—not surprisingly, since the media coverage was premised on the assumption that the trial was all about sex, not about work. The failure of some male performers to come and the modest amounts of semen actually produced remained unmentioned throughout the vast amount of paper and airwave space filled by descriptions of the event. Although pervasive in both legal investigations and in television portrayals of quests for justice, the forensic gaze does not have a monopoly on the work of vice squads and similar institutions. The collection and analysis of physical clues sometimes gets pushed into the background by other epistemologies. The next trial discussed, involving heterosexual consensual s/m, was run primarily as an inquiry into moral and sexual deviant desires and identities. A list of physical clues—the list of exhibits—occupying six whole pages was attached to every volume of the trial transcript; and, in the courtroom, many experts were brought in by the defense to explain and demystify s/m paraphernalia. While this might been a great opportunity both to use and contest the forensic gaze, in the transcript these objects do not emerge as the key signifiers. Instead, for both the prosecution and the judge, the case was about oldfashioned deviance—not deviance in the strictly psychiatric sense, however, since the evidence of the forensic psychologist who testified was ignored, but in the everyday sense. The s/m customers were not medicalized; they were constructed as simply weird, as not showing normal masculine reactions. The trial of Ms. Bedford thus allows us to see the forensic gaze in a different context, one in which—unlike in the previous two situations—this gaze did not reign supreme.

10 In the case of this and other trial transcripts consulted, I sometimes cite passages without giving identifying information in the interests of protecting citizens’ privacy. Only the names of police officers and managers whose names are indelibly attached to cases are given.

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I D E N T I F I C AT I O N A N D D O M I N AT I O N : T H E M A S O C H I S T I C H E T E RO S E X U A L M A L E B O D Y IN POLICE DISCOURSE

At around the same time that the Remington’s trial was going on in downtown Toronto, a similar trial was taking place in the suburban court in Newmarket, just north of Toronto (R. v. Bedford [1998] O.J. 4033). This arose out of a police raid, conducted by York Region morality-squad officers four years earlier, on the premises used by a Ms. Tracy Jean Bedford to run a dominatrix business out of an inconspicuous bungalow on a residential suburban street. Ms. Bedford was charged under the bawdy-house laws. There was no question at all that money was exchanged. Thus the issue around which the trial turned was whether s/m activities are sexual or not, both as a general rule and in the specific case of this bungalow. Ms. Bedford could have been tried under the “indecent acts” section of the bawdy house law, in which case the police could have argued that s/m is indecent whether or not it is sexual; but, as it happened, she was charged for “acts of prostitution,” not “acts of indecency,” which meant that sex had to be proved. The testimony given by the investigating officers at Ms. Bedford’s trial differed markedly from that of the Remington’s trial in several respects. The first aspect examined here concerns the curious process through which police officers stigmatized the heterosexual male customers, while nevertheless relying on a sort of top-down male bonding to read the male customers’ experience, malgr´e eux, as painful rather than pleasurable. The second contrast between the two cases lies in the markedly different behavior of the officers conducting the raid. The Remington’s raid was conducted in a completely professional manner, whereas the raid on Ms. Bedford’s premises, by contrast, was characterized by a bizarre reenactment of the very s/m activities that were being eradicated, a reenactment that crossed the line into real rather than symbolic violence. First, then, the dialectic of identification and dis-identification. While the downtown officers boasted about feeling comfortable in the all-gay environment of Remington’s, with Officer Bruce Newman, in particular, recounting with pleasure how he insinuated himself into the confidence of a regular customer and how he managed the risk of being picked up by claiming to be waiting for his boyfriend, the suburban officers made a point of distancing themselves from the site being policed and casting aspersions on the masochistic male customers of Ms. Bedford. This disidentification, which the judge then took on as his own standpoint, shaped the whole case and may have determined the outcome, so it is worth examining its production in some detail. Constable Baird was

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very clear that, after his first, preliminary tour of the establishment, he did not want to go back as a regular customer; so he decided to pose as a voyeur (which, of course, he was, but the irony was lost on him). He was emphatic about distancing himself from the men who paid for s/m: “I did not wish to take part in any way, shape or form with any of the sessions and was looking for a way to get around it.” Thus he told the dominatrix that (in the long tradition of police surveillance of gay men in public washrooms) he did not want to participate, just “watch from where I couldn’t be seen” (173–74). While watching men who couldn’t see him he was, of course, seen and no doubt sexually appraised by the dominatrix herself; but the fiction that the investigating officer was able to construct a pornographic panopticon from a position of total scopic power was never challenged. The authoritative, top-down construction of the male customers as deviant Others was, however, simultaneously undermined by a powerful trace of male bonding, an imaginative identification with the bodily pain that the police officers imagined the customers must be feeling. This imagined pain, as felt or appropriated by the officers, was presented as more real than the customers’ own experiences and the customers’ interpretation of their experiences. Constable Baird, the leading police witness, explained that on his first, preliminary visit he was asked to pull down his pants and lie down on the floor. He stated that he was wearing a long shirt “and I was thankful for the length of it.”11 While the officer’s penis, like the name of the Father, is never mentioned— indeed, the old prohibition on mentioning the penises of authoritative heterosexual men extended so far on this occasion as to cause confusion about whether he was wearing underwear—he admitted to the court that “I was exposed at that time” (168). He then explained that he went to some lengths to pretend that he had masturbated in the adjoining video room; the pretense of masturbation was effected by going there and emerging somewhat later with “crumpled kleenex” in his hand. It is clear from the trial transcript that Ms. Bedford was rigorous in avoiding direct involvement in sexual activity, partly because “regular” sex would be inconsistent with her dominatrix persona and partly because sexual activity could result in being charged under the bawdy-house laws. Her instructions to both customers and employees were that if some men absolutely needed to masturbate, they could do it themselves, but the staff would provide no help in this. Since men going into bathrooms to masturbate would not provide sufficient proof of legally relevant sex, however (something that underlines the fact that semen is not 11 In another instance of morality-squad reality effects, he mentions that the shirt he wore had a “Coors Light” logo.

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always a sign of sex), much effort was spent in trying to document the presence of semen in the more public areas of the house—hence Constable Baird’s trip to the porn video room. While looking for telltale semen stains, the officer still had time to think about s/m and its meaning. The feeling of unaccustomed sexual vulnerability evident in the long-shirt anecdote was clearly heightened by seeing a man being willingly beaten (not very hard, one should add— Ms. Bedford had a strict rule about drawing blood). Departing markedly and suddenly from the usual morality-squad deadpan recitation of minute physical facts, Constable Baird told the court (constituted here as another one of the guys) that as he watched the customer he could feel the other man’s pain: As if we were playing sports and someone got really—got kicked between the legs, and although it didn’t happen to you, you kind of tend to go, oooohh. . . . There were no cries for any help. There was nothing in any audio [sic] from this person and I don’t think I would have reacted quite the same. (161) The s/m activity is presented as weird. Here is a man being physically abused during rough play but not crying out for help—how strange! Why would a man “kicked between the legs” remain silent or, as Baird inelegantly puts it, emit “nothing in any audio”? The sports analogy (which was unprompted by evidence, as men did not play with one another in Ms. Bedford’s dungeon) functions to interpellate as a heterosexual red-blooded male who plays or has played all-male contact sports and thus knows that pain must remain incidental to play and never itself become the object of play. However deviant, nevertheless, the s/m activity would not have been criminal in the absence of sex. Thus the Crown attorney prosecuting the case did not pursue the sports image but went on to make a point of asking if the officer saw any semen emanating from this particular male customer. The officer did not see any ejaculation in progress. But he said that at a later point the customer went by “with what I believed to be semen on the front of his leg” (170). Later, on cross-examination, counsel for the accused tried to argue that the impugned substance might have been oil, Vaseline, K-Y jelly, or melted candle wax—a line of argument that, rather than casting doubt on the officer’s testimony, had the unintended effect of proliferating images of sexual deviance in the judge’s mind. In general, a notable feature of the trial was that defense counsel’s attempt to deny the presence of semen—thus contesting what is usually a key “clue” of immorality or crime or both—failed to have the desired effect. In a rape trial, arguing that semen was nowhere to be found would indeed have been an effective defense tactic. And here, one might

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have thought that the absence or the relative scarcity of semen would have been effective as well, since the main thing the police had to prove was that sex acts were committed (the presence of money was conceded). But this was not the case. Indeed, the more that diverse sexual practices not involving ejaculation were named and discussed, by the eyewitnesses and by the numerous expert witnesses who explained s/m activities for the court, the more the judge seemed convinced that sex was the truth of it all, semen or no semen. The judge made it explicit that he was not about to remain faithful to the forensic logic of physical clues that often dominates criminal courtrooms: for him, sex was a deeper, more psychological entity. After having listened to many valiant defense efforts to de-sexualize the house and its contents for days on end, the judge made the following remark: “I—I keep—every time I come to this court I keep thinking of that famous Leslie Nielsen line, eh, when the fireworks building was exploding behind him and he is telling the neighbours, go home, there is nothing to see here” (338). The fireworks of deviant sexuality were indeed exploding in his courtroom. Whether there was any physical evidence such as semen (“anything to see here”) was not important. That the fire of sex was somehow “behind” it all, as it was behind the Nielsen character, was just plain obvious. The judge’s invocation of a movie image featuring a fire was thus powerfully performative—in much the same way that the U.S. Supreme Court’s infamous decision in the Minnesota burning-cross case not only describes the burning but itself acts as fuel to the fires of racism (Butler 1997). In keeping with the parody of Freudian theories of sex as the deep truth that was performed in the remark about Leslie Nielsen’s fireworks, the judge elsewhere interrupted the proceedings to imaginatively reconstruct one non-semen–based form of sexual deviance with the psychoanalytic cliche: “I cannot resist.” This phrase, not surprisingly, was uttered during the examination-in-chief of the only female employee who testified. THE COURT: I cannot resist. The—I think you said yesterday you used male and female clients. THE WITNESS: That’s correct. THE COURT: So gals would go there as well. THE WITNESS: Yes, they would. I never had a female client. I know Terri [Ms. Bedford] did a few times, but I’ve never seen a female client myself. I know they came in as couples sometimes. THE COURT: Okay. Thank you. (R. v. Bedford, 575) The judge’s inability to resist his own voyeurism was for him natural— unlike the s/m practitioners’ indulgence of their deviant desires. Again, we see a commonsense psychology at work here, distinguishing sexual

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desires not with science but rather with the tools of what the feminist sociologist Dorothy Smith might call “the everyday world of the locker room” (Smith 1987). The forensic gaze employed by the undercover officer to gather evidence was thus not appropriated or reinforced by the judge. At Remington’s, the emission of semen was the be-all and end-all of both sex and deviance. In the suburban bungalow of the dominatrix constituted in police and courtroom practice, by contrast, sexuality appeared not as a set of clues (Ginzburg 1987) but as the not-always-visible ground of a proliferating series of deviant acts, some with semen and some without. The police and the crown certainly behaved as if the rather sparse semen stains sighted by Constable Baird were sufficient to clinch the case; but the judgment makes very little of this, and the judge’s impromptu interventions during the trial no doubt indicated to both prosecution and defense what would be considered relevant in the end. The s/m trial thus suggests that some forms of deviance may be so highly sexualized before all clues-type evidence that no semen need be produced to establish their sexualness. Lesbianism may be the archetypal form of invisible or untraceable deviance in this regard, although there are so few trials or other legal situations in which lesbian sex is described that this must remain speculation. But in the Bedford trial, it was clear that the more that expert witnesses regaled the court with descriptions of obscure s/m practices (including many without semen but involving physical pain well beyond Ms. Bedford’s standards), the more likely it was that the judge would find that sex was indeed at the bottom of it all, whether or not quantities of semen were found and noted by police observers. But if semen did not play a key role as a clue of sex in the s/m dungeon, what then was the truth about s/m? That s/m is all about imaginative power plays rather than about semen emission and physical orgasmic sex was an argument repeatedly made by various witnesses, including Ms. Bedford herself. In this view, the truth of s/m lies in psychological games with power. This view often put forward by s/m advocates, who argue that if one is seriously into s/m, the physical characteristics and even the gender of one’s sex partner do not matter very much, unlike in conventional sex. But in suburban Toronto, at any rate, the attempt to question the belief that semen-in-vagina intercourse, rather than psychological games of recognition and submission, is the truth of pleasure and the truth of sex did not prosper. Instead, the “commonsense” view that s/m is just a weird way to satisfy one’s sex drive prevailed. There are, of course, some psychiatric and medical authorities who believe that s/m is a medical disorder. But such views were nowhere in

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evidence in this trial. Often common knowledge and medical knowledge merge and converge but not in this case. The commonsensical, nonscientific character of the judgment about deviance made in the Bedford courtroom was much clearer—purer, one might say—than in the situations in which medical expertise is deployed to support commonsense theories of normality. A senior forensic psychologist from Montreal, Dr. Granger, brought by the defense to de-medicalize consensual s/m, tried to shake the hegemony of commonsense theories of the normal and the pathological but to no avail. The prosecutor, attempting to enlist the psychiatric expertise that the defense had brought in on the side of the morality squad’s lay knowledge of weirdness, said to Dr. Granger: It seems that—masochism seems to fly in the face of common sense, doesn’t it? I mean people seek out physical pain, bodily restraint, and humiliation and embarrassing situations in situations where they derive sexual pleasure. And that’s why it defies common sense. They actually seek out this stuff, this pain, for the purpose of pleasure, correct? (R. v. Bedford, 816) Rather than provide psychological facts to confirm the investigating officer’s statement that as a normal male he would not derive pleasure from physical bondage, Dr. Granger answered instead with a tirade against the prevalence of commonsense notions of morality in the courtroom, a tirade worth reproducing here given this book’s focus on law’s faith in commonsensical knowledge. But common sense is not a concept in psychology—and in science. Science tries to go farther than common sense. Because common sense tells you that humans can’t fly, cannot fly, and that a piece of metal cannot fly either, but I took the plane and I’m going to take the plane tonight. So it defies common sense also . . . So I think common sense—I cannot comment on common sense, really, in those kinds of things. I’m trying to get data in qualitative work technique and to understand the phenomenon. (817–18) Reiterating the point, Dr. Granger contrasted the everyday psychiatry of prosecutor and judge with a more properly empirical, scientific logic: A [Dr. Granger]: For a scientist, nothing is unusual. It’s just there or it’s not there. Q [Crown]: Oh. A [Dr. Granger]: And then you have to understand it. Unusual is not a— Q [Crown]: So you . . . A [Dr. Granger]: . . . scientific category.

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Dr. Granger tried to educate the court about the difference between deviant sex offenders who attack unsuspecting women and consensual s/m practitioners who pose no risk to society at all, but this foundered on the prevailing notion that anything unusual is abnormal. Thus the professional, medical gaze of one of Canada’s most senior forensic psychiatrists was sidelined in a particularly stark manner. In this case we see forensic psychiatry rejected not in the name of the law and its concern with particulars but rather in the name of the common knowledge for which it is simply obvious that pleasure and pain are binary opposites. The debates among legal theorists about the influence of disciplinary and norm-based knowledges in law are thus shown to be rather too simplistic, since legal logics and scientific knowledges are not the only two contenders in the epistemological contests waged in low-level courtrooms (cf. Ewald 1990; Hunt 1993; Rose and Valverde 1998). The final element of this trial examined here concerns the fact that, despite holding the same theory of s/m as deviant sex expressed by the Crown attorney, the police officers involved went a long way toward imitating s/m and even practicing it during the raid, as documented in newspaper reports and courtroom testimony. Some of the unwitting performances of the very same s/m that was being prosecuted were in the all-too-obvious Freudian-slip genre already pioneered by the judge in his Leslie Nielsen lines. One such performance, which would have been comic had Ms. Bedford been acquitted in the end, took place during the cross-examination of Officer Cullen. He had been in charge of executing the search warrant and was thus responsible for the way that no fewer than fourteen officers invaded the house, destroyed many of the belongings, and impounded virtually everything in it, including Ms. Bedford’s personal clothes and household effects. Attempting to prove that the officers led by Cullen impounded many objects that could not possibly count as “evidence,” Alan Young, defense counsel for Ms. Bedford, showed Officer Cullen a video of the house. As the tape was rolling, he asked: “What is hanging behind the stove?” Cullen replied: “Looks like a copper pan.” Young then said, “Would you agree that it’s a frying pan?” Cullen, smelling a defense counsel trap, responded by invoking the old Andy Capp trope of the nagging wife, the familiar dominatrix of ordinary heterosexual domesticity: “I’m not a cook. My wife is a chef. If I misname a pan, I get—but it’s a pan of some sort” (R. v. Bedford, 355). Whether the male officers in the raid lived in fear of dominating wives wielding frying pans at home, at work they were very comfortable taking the dom position. Testimony from Ms. Bedford and one of her employees suggested (although some of this was not part of the transcript) that the officers who were executing the warrant spent a

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considerable amount of time playing with the equipment and having what were described as “mock sword fights.” In his ruling on whether the officers behaved improperly, provincial court judge Bogusky summarized this episode as follows: The rowdyism which developed in the basement. And if everybody recalls, the basement had the erotica area and the dungeon and you know it is—if you want to get a reaction from a bunch of young bucks, present them with some imagery of the male anatomy, including images of penises plus equipment for cross-dressing and you might get a rather strange reaction. The reaction which flowed was almost predictable. You know, there was a lot of rowdyism downstairs and hooting and howling and ultimately the officer in charge had to tell them to put a lid on it. I do not know with what words you would describe it. Rude. I do not know. Something along those lines. So nothing, really—on that one alone gives a remedy.12 (1379–80) “Images of penises” are apparently able to cause a quasi-biological automatic response in the officers (biologically described as “young bucks”). In a curious reversal of the usual hierarchy of reason/good versus passion/bad, the highly controlled, carefully scripted, preplanned activities of the customers appear as deviant and “disgusting” (a word used in the decision). By contrast, the uncontrolled, unplanned, excessive performance of the officers is described as “rude” but nevertheless a totally excusable product of young (normal) men’s animal spirits. How exactly the officers’ playing with dildos and whips differed from that which the customers paid for is not a question that occurred to the judge. It undoubtedly occurred to the defense; but casting aspersions on officers’ motives or psyches is never a good defense strategy, particularly with a conservative judge. The myth of officers’ utter normality was thus never questioned, even in the face of rather damning evidence of deviant pleasures. The young bucks’ normal deviant pleasures did not stop at mere horseplay. Using the word “rowdyism” to describe the officers’ actions was remarkable not only because it makes a mockery of police regulations but also because it clashes with the evidence of actual, not playful, domination. The judge had heard uncontradicted testimony from one of the employees about the way that Constable Almeida behaved when the raid was in progress. The employee stated that Almeida slapped Ms. The awkward grammar here may suggest that Ms. Bedford was able to obtain a remedy for the way her house was searched, but that is not the case. Neither did she get a remedy for the fact that she was unnecessarily strip-searched. 12

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Bedford on the face. Ms. Bedford asked for his badge number so she could report him. Immediately after, he apparently said to her: “You don’t ask the questions. I—I am your master now. You call me master. That’s what he said to her. And I was in shock the way he was talking to her” (495; my emphasis). Continuing to play the dom role, Constable Almeida and his colleagues proceeded to handcuff three people, strip search them, and take them to the police station. CONCLUSIONS

In the Bedford trial, semen made a cameo appearance as a trace of past sex, but unlike in the Remington’s trial and unlike in Kenneth Starr’s White House, it was not the privileged sign of the essential sexual truth—and essentially sexual truth—of the establishment in question. In the suburban Toronto s/m trial, both police and prosecution statements invoked commonsense notions of normal and deviant eroticism, with the key undercover officer in the Bedford case going out of his way to dis-identify with the customers even though they were, like him, male, white, and heterosexual. The specter of deviant identities—identities constructed out of commonsense notions rather than with psy expertise—kept reappearing in the courtroom even in the midst of objectivist forensic accounts of objects and gestures. And, if his unprompted inquiry into lesbianism is any indication, the judge, too, was personally haunted by the specter of untraceable sexual deviance. The morality squad officers testifying in the Remington’s case, by contrast, were careful to avoid discussing identities or labeling people, probably because they had been thoroughly briefed and told that, in order to avoid the defense’s claims about homophobia and bias, there was no surer tactic than simply to avoid all identity discourses. Just as police and other legal personnel often feel that they can avoid imputations of racism if they vigilantly refuse to utter the word “race,” so, too, the word “gay” was wholly absent from the police testimony. To avoid being dragged through the mud by a hot-shot, high-priced defense lawyer, and to preempt negative coverage from the usually liberal, pro–civil liberties Toronto media, it was indeed effective to describe the activities using strictly forensic objectivist language. At various points, officers were prompted to discuss their knowledge of Pride Day and other gay cultural activities, but they steadfastly refused. They could not say anything positive about gay cultural and sexual identities, so they preferred to say nothing and to stick to forensic-type description. The knowledge format favored by the morality squad cops in the Remington’s trial was also favored by Kenneth Starr. Starr’s report studiously avoids passing overt moral judgment on the particular sexual

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acts described in vivid and almost anatomical detail in the report. For his purposes, proving the mere presence of sex was sufficient. Just as the officers testifying in criminal trials attempt to “stick to the facts” so as to preserve the judge’s epistemological prerogative to interpret, so, too, Starr, constructing the readership of his report as the court before which Clinton was being tried, tries to emulate the police witness format. This could be done without too much risk of semiotic contestation or failure because, for him and probably for many American citizens, all sex in the Oval Office, especially sex involving a married president, is in the category of deviant and unethical. The “kinky” details were, in a sense, icing on the cake, redundant reiterations. Starr did not need to provide an explicit evaluation of the significance of Clinton’s choice of certain sexual activities over others, for he was confident that most readers of his text agreed with his way of drawing the ethical line: any and all sex not involving Mrs. Clinton was proof of the deviousness and vice of the president. And the semen stains on the famous dress, assumed to be incontrovertible signs of sex, thus became the best, most objective proof of the president’s weak will and bad character. Starr only distances himself from the forensic format in that, no doubt out of habit, he follows the legal convention of using only black-letter words: he failed to include a picture of the dress and its stains in the report, which is what a true forensic technician would have done. The resort to purely objectivist, forensic description is one indication of something that will be discussed later in relation to the Pride Day cases involving lesbian/gay communities, namely, the current fragility of deviant identity categories. Labeling certain activities as “deviant” or certain people as abnormal is not as easy now as it was in the era before sexual liberation, anti-psychiatry, feminism, and gay rights. Judges may continue making judgments informed by their own “commonsense” notions of normalcy, as Judge Bogusky did in the s/m case; but it is significant that the defense, and the often liberal media, can always find counter-experts who will say that “unusual” is not a scientific category. The safest strategy for drawing the line in the era of contested psy knowledges and cultural pluralism is, as we have seen, to stick to the clues fetishized since Sherlock Holmes by countless police procedurals. Moral and legal truths may be somewhat hidden or may be invisible because they are in the past; and talk about these truths is subject to all manner of debate about cultural specificity, point of view, masculine bias, heterosexism, ethnocentric values, and so forth. But moral and legal truths always leave telltale stains—or so we are promised by the epistemology of clues—and these stains and traces, the forensic gaze tells us, are not culturally laden. They are simply there, for all to see. If only to provide academic readers with some relief from the re-

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lentlessly vulgar, indeed sleazy, character of the texts and situations analyzed in this chapter, it may be pleasant as well as useful to conclude the chapter with a consideration of some of the unexpectedly noble ancestors of the vice squad’s forensic gaze. This can be done by recalling Foucault’s analysis of prescientific knowledge formats in The Order of Things. Among cultured Europeans before the Scientific Revolution, Foucault tells us, the study of physical clues was pursued mainly as a way to uncover or discover God’s plan for the world and for humanity. Everything from thunderstorms to the movements of the planets to the traces of disease on human bodies was scrutinized by those Renaissance men intent on “making everything speak” (Foucault 1973, 40). The little fact that there are seven orifices distributed on human beings’ heads, for example, was not a fact so much as a clue. If properly read, it would tell us that God intended us to think about the seven planets and, more generally, remind us of that key truth of Renaissance knowledge, namely, the correspondence between the human body and the cosmos. Physical traces on bodies and on the surface of the Earth were regarded by these thinkers as ultimately left by God, and thus as a series of clues leading not so much to a knowledge of individual acts but to a general knowledge of the world that followed logics no longer accepted in today’s science practices. Today clues mainly serve to find out “who done it,” while science concerns itself with higher, more general questions. But clues used to be a key element in a more exalted pursuit of knowledge. As Paracelsus puts it, in a passage cited by Foucault in his reconstruction of the classical episteme: It is not God’s will that what he creates for man’s benefit and what he has given us should remain hidden. . . . And even though he has hidden certain things, he has allowed nothing to remain without exterior and visible signs in the form of special marks—just as a man who has buried a hoard of treasure marks the spot that he may find it again. (Cited in Foucault 1973, 26) Conjectural inquiries into the invisible truths revealed to the human eye in traces and clues have been largely abandoned by real scientists, who prefer to pursue abstract objects such as general laws of motion and invisible entities like electrons and probabilities in their quest to predict and control the future. Conjectural inquiries about past events that have left visible traces on the world, by contrast, or perhaps by default, have flourished in low-status sites of knowledge production. One could hardly imagine a lower site of knowledge production than the morality squad’s recording of the physical details of sexual gestures, surfaces, and substances. The gaze deployed by the morality squad to write up notes and by Kenneth Starr’s report to scrutinize the stains on

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the blue Gap dress, however “low” in every sense of the word, nevertheless has a noble ancestor: the imaginative and careful documentation of analogies, similitudes, and affinities between the celestial world and the human body that was undertaken by Renaissance thought. Who is to say, therefore, that clues-based knowledges will remain, in the future, monopolized by the practitioners of the forensic gaze.

CHAPTER FOUR

Beyond Sexuality? ✦ This chapter and the next examine the formation of a relatively novel socio-legal object, sexual orientation. By considering the kinds of knowledges that have been deployed by activists and litigants, it is possible to make a contribution not only to the sociology of law but also to our collective understanding of that elusive entity “sex,” whose historicity and flexibility has often been declared but seldom carefully investigated. It is important not to exaggerate the reach of the “new”: numerous areas of North American law, particularly in the United States, remain wholly contained within the terms of Foucault’s famous analysis of sexuality—the distinction between governing sex through acts, as in the criminal law or in religious injunctions, and governing it (and us) through the production of whole psychic identities that persist even when one is not committing any acts and that are thought to constitute the deepest truth about the self. By contrast with the familiar terms within which criminal charges of gross indecency or sodomy are negotiated, however, human rights law (broadly, non-legalistically conceived) has witnessed the emergence of a new way of governing sexuality. Foucault showed that homosexuality was the privileged identity of disciplinary expertise, of the late-nineteenth-century paradigm of the deep psychic self that would haunt not only experts but ordinary people struggling with their feelings throughout the twentieth century. And scholars writing with Foucault’s tools have noted that many other identities constructed by making desire into a whole self (from the “shopaholic” to the compulsive gambler) can be understood as the proliferation into fields outside the sexual of the same kind of knowledge practices pioneered by the sexologists of the 1890s. In that respect, analyzing the space of homosexuality, a space that is now beginning to be occupied by different entities, has important implications for our understanding of personhood and desire in general. The current specialization of the scholarly and publishing worlds has unfortunately meant that “queer studies” has been thought of as relevant only to gay people, or possibly to feminism. And much of the queer theory literature has compounded this problem by a writing style that assumes an audience that knows about and cares about the internal debates within queer communities. But if Foucault’s analysis of the formation of homosexuality was important for any subsequent study of psychic identity, of expert

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knowledges, and of the experience of selfhood in the twentieth century, as is generally admitted in the literature, so, too, an analysis that follows Foucault’s interests into the present should be of general interest. If at all accurate, such an analysis will have important consequences for the way we study the governance of the self. The new practices of power/knowledge that are emerging around “sexual orientation” can be characterized as targeting not the deep self favored by psychiatry but rather sets of empirically visible practices: the cultural practices of urban gay communities, most notably, but also certain individual speech practices (such as a soldier telling his or her boss, “I’m going to the Gay Pride parade this weekend”). These are linked to and rooted in the better-known development of the deep homosexual psychic identity that Foucault outlined, but they go beyond and outside it in some ways. That the practices and habits of individuals and groups that see themselves as constituting “the gay and lesbian community” are in a different field of knowledge than the older entities (the criminal act of sodomy; the isolated, psychiatrized homosexual who later got turned into the proud gay person) is clearly visible in certain legal cases involving same-sex sexual practices, cases in which neither psychiatric nor moral expertise is deployed or even referenced by either side or by the adjudicating tribunals and courts. The absence of “psy knowledges” in this area of law poses a challenge to Foucault’s framework. Examining a large number of rights-oriented cases, one finds that new knowledges and different authorities are required by law to investigate and legally certify the existence of the object, invented for legal purposes but quickly adopted by many as a descriptor of experience, that has come to be called “sexual orientation.” In what follows, then, there will be a detailed consideration of the workings of this entity in some selected areas of law, with particular attention to epistemological and evidentiary issues; but it is not inappropriate to begin here not with law but with a more general consideration of the analytical tools that we have to examine the formation of sexualized entities and objects. T H E FA D I N G AWAY O F S E X ’ S R E A L I T Y E F F E C T ?

The most influential thinker on sexual issues since Freud, Michel Foucault, died suddenly in 1984, while he was working on a genealogy of European sexual knowledges and sexual ethics. It may seem trivial to note that Foucault’s influential analyses of the historical formation of sexuality as a deep personal identity and as a site for the constitution of truths about “the self” are now almost twenty years old. But if in the spirit of Foucault’s own work we constantly remind ourselves that we are thinking and living in a particular present rather than in a timeless

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ivory tower, it is important to reflect on the significance of the time that has elapsed since the 1970s and early 1980s, when Foucault formed his questions and did his research on sexuality. One way of beginning to take responsibility for our own temporality—which is also always a specific cultural and economic location— is to reflect on a statement made quite some time ago by Jean Baudrillard. Baudrillard’s polemic Forget Foucault was meant to put Foucault in his place, to subordinate him. But what he said in his polemic can be read more charitably and constructively than Baudrillard intended: as a reminder that, although Foucault liked to write about “the emergence” of this or that new phenomenon, the emergence of something new can only be properly described when that thing is no longer new and is, in fact, dead or nearly dead. And what if Foucault spoke to us so well of sexuality . . . only because its form, this great production (that too) of our culture was, like that of power, in the process of disappearing? Sex, like man, or like the category of the social, may only last for a while. And what if sex’s reality effect, which is at the horizon of the discourse on sexuality, also started to fade away radically, giving way to other simulacra and dragging down with it the great referents of desire, the body, and the unconscious—that whole recitatif which is so powerful today? Foucault’s hypothesis itself suggests how mortal sex is, sooner or later. (Baudrillard 1987, 13) Foucault’s influence is great today, but his substantive analyses are often merely reiterated and applied in cookie-cutter fashion, with little thought about how we now might do work that is inspired by Foucault and benefits from his insights but is a specific response to our own present. In this context it may be useful to begin to think of Foucault not as the analyst of the new—of modernity—but as someone who refused to follow the postmodern penchant for divining the future, seeking instead to understand the present the only way we can do it, namely, by looking back at where we have come from. This would mean thinking of the great knowledge apparatus of sexuality as something that was already on the wane by the time that Foucault began his research, in the late 1970s. Baudrillard’s insight can be used to help lay the groundwork for postFoucaultian analyses of the organization of sex that incorporate a reflexive dimension, a keen awareness that our situation today is not the same as that in which and from which Foucault was writing. To name but one obvious discontinuity: Foucault, whose work was crucial for the proliferation of critical analyses of AIDS, did not live to see AIDS politics. He died of what soon came to be called AIDS, of course, but at

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a time when the gay-related immune deficiency syndrome was not yet AIDS and, more specifically, not the AIDS of today—that major issue of global politics, international health policy, and political battles about the stigma of sexually related illness, the symbolism of preventive advice, and the economics of treatment. Those of us who are alive and writing today are, for many reasons, in a different place than Foucault was when he famously traced the emergence of sexuality as a major mechanism for producing both reality effects—the inner psyche—and epistemological effects—sexual identity as the truth about human beings (Foucault 1980, 1994). Sexuality in Foucault’s sense—as the mechanism of power/knowledge constituted in nineteenth-century Europe through biomedical and criminological apparatuses—was regarded as the ultimate and most secretly guarded truth about human beings throughout the twentieth century. But even before the millenium there were indications that le dispositif sexuel was fraying at the edges. At the level of academic discourse on sexuality, the emergence of queer theory—a loose term for a number of different projects to think about sexual freedom without invoking the deep self—is the most visible symptom of the vulnerability of “sex’s reality effect.” But it would be naively idealistic (Hegelian in the bad sense of the word) to see queer theory as causing some sort of breakup of sexuality. It is more plausible to see the amorphous phenomena that Baudrillard grandiosely calls “the death” (or the mortality) of “sex” as part of broader social, economic, and cultural processes through which the disciplinary mechanisms and experiences that constituted both “sexuality” (in Foucault’s sense) and “the social” (Rose 1996) are being “outperformed,” to use a good neoliberal term, by postdisciplinary tools and tropes. Like Baudrillard, but in a friendly rather than hostile manner, Gilles Deleuze pointed out that Foucault was able to trace the outlines of disciplinary mechanisms precisely because the kinds of tools and diagrams of power/knowledge described so evocatively in Discipline and Punish were already, in Foucault’s lifetime, being eroded by the decline of welfarism, the rise of risk management, the emergence of antipsychiatry and other anti-expert discourses, and other politico-cultural and socioeconomic developments that Deleuze subsumes under the term “control.” “Control,” a term that does not translate well in the Englishspeaking world because of the heavy burden of “social control,” can be briefly thematized by being distinguished from “discipline.” As both Foucault and Deleuze argued, the ultimate aim of nineteenthcentury disciplinary institutions—the asylum, the penitentiary, the hospital, and the family qua normalizer of its members—was to produce biopolitically useful populations, at one level, and “individuals,” at an-

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other level. And the mechanisms that allowed populations and individuals to be constituted at the same time, through the same techniques, make up what Foucault called “discipline.” Disciplinary tools and knowledges laid the social and psychic foundations for many of the key features of advanced capitalist societies; but, as Deleuze commented somewhere, discipline is a very expensive project. Those sprawling Victorian asylums consumed a huge part of state budgets, and as institutions and programs proliferated with the welfare state, discipline came under increasing scrutiny, and not only by subjects rebelling against it. “Control” is the term Deleuze used to describe some of the postdisciplinary mechanisms for governing people differently. As Nikolas Rose describes it: In disciplinary societies it was a matter of procession from one disciplinary institution to another—school, barracks, factory . . .— each seeking to mould conduct by inscribing corporeal and behavioural competences, and persisting practices of self-scrutiny and self-constraint into the soul. Control society [by contrast] is one of constant and never-ending modulation where the modulation occurs within the flows and transactions between the forces and capacities of the human subject and the practices in which he or she participates. One is always in continuous training, lifelong learning, perpetual assessment. . . . In such a regime of control, Deleuze suggests, we are not dealing with . . . subjects with a unique personality that is the expression of some inner fixed quality, but with elements, capacities, potentialities. (Rose 1999, 234) The question motivating and guiding this chapter and the next is the one raised by Deleuze and also by Baudrillard: What if sexuality were in our time in the process of withering away—in the same way that the other great truth apparatus of the nineteenth century, “man,” withered away very visibly in the second half of the twentieth century? If sexuality—in the sense of a deep truth about the self that has been investigated and constituted by both expert and popular knowledge practices, from confessional writing to psychoanalysis to sexology—is withering away, one would expect to see what one might call, by analogy with “legal pluralism,” “sexual pluralism.” Why pluralism? Because what Foucault called le dispositif sexuel was never a systematically built or organically developed unity. Like every other broad-ranging mechanism of governance, what is called in the English translations of Foucault’s works “the deployment of sexuality” has always been a kind of Wallace-and-Gromit makeshift assemblage. As a constantly evolving agglomeration of knowledges and techniques of governance drawn from different sources and used in an ad hoc manner, sexuality is not

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likely to smoothly evolve into any other single unified entity. Rather, one would expect to see some of the issues and crises formerly lumped together with others under sexuality to be later (that is, now) taken up by authorities and knowledge techniques that may have arisen for other purposes, while in other spaces formerly also under the umbrella of sexuality, something else is going on—the same old disciplinary story, perhaps, or the revival of older forms of governance. This hypothesis about the breakup of sexuality seems to hold true in at least some of the areas covered by legal mechanisms for constituting sex, sexual activity, and sexual identity. The jerrybuilt character of le dispositif sexuel and its successor mechanisms is particularly evident in the United States. In that country, sodomy laws—which appeared as a complete anachronism back in the 1970s—have been given a new lease on life by a Supreme Court suffused with Christian conservatism. But at the same time, in the United States as well as in Canada, Australia, and Europe, one can see completely new, arguably postdisciplinary mechanisms— such as new rules prohibiting discrimination against the very population that is thought to be characterized by the intent to commit sodomy and/or by possessing the most notorious of all the deviant sexual identities, namely, homosexuality. Looking at the emergence of sexual orientation as a novel social and legal category, one that did not exist when Foucault was formulating his research, proves fruitful not only for legal studies but also for social theory. Feminist histories of sexuality and Foucaultian work on sexual issues have amply proved that sex is an important site for the governance of many kinds of processes, a key site for the formation and deployment of certain modern forms of power. This then implies that our exploration of the waning of “sexuality” in legal arenas will have implications for other kinds of research projects and other kinds of political questions. Just what these implications are is not clear to me at this point. Here, by and large, I will leave the broader implications of my study to the reader, since I am not in the best position to offer suggestions on how my analyses might apply elsewhere. My main argument, in this chapter and the next, is that in one area of law we can see the beginnings of a way of organizing sexual and erotic preferences that is more about habits—cultural, political, and economic habits as well as sexual habits—than about either the “acts” of premodern moral regimes or the “identities” of modern disciplinary regimes. The emerging regime seems to have very limited jurisdiction; the emergence of legal protections for sexual orientation and for “gay and lesbian communities” neither solves nor forecloses the by now tired debates about whether sexual orientation is about acts or identites (conduct versus status, in American law). While not eliminating or even

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synthesizing or otherwise resolving the old, the new legal regime does begin nevertheless to open up new avenues that have at least a resemblance to the logic of “control regimes” evoked by Deleuze. If it were not problematic to invoke Hegelian terms to pursue Deleuzian and Foucaultian preoccupations, one could say that the new model has emerged out of the failure of the act/identity dialectic to find a synthesis or resolution. The debates about status versus conduct that were stuck in what Hegel would call a “bad infinite” still go on or go around in circles. But whether sexual orientation is a matter of acts or a matter of identity, the issues formerly managed under the banner of homosexuality are, in some contexts, no longer a matter of either sin or psychic deviance. It is rather a matter of tendencies and habits—social habits and speech habits, as we shall see, as much as sexual ones. The impasse of the act/identity opposition can best be seen in the U.S. government’s contorsions to generate a policy for regulating homosexuality in the military that would continue to defer to old homophobic hatreds while moderating morale-lowering exercises of the disciplinary gaze. The famous “Don’t ask, don’t tell” policy, elaborated by the Clinton administration in the early 1990s, was at one level a project to govern through identity by throwing out of the armed forces not those who had committed sodomy but rather those with a gay identity. The compromise decrees that isolated acts are not immediate grounds for dismissal in the absence of some evidence of gay identity. But, contrary to the situation that would be predicted by an orthodox or vulgar Foucaultian, gay identity is not a deep unified self mapped by expert testimony, medical evidence, or any other disciplinary knowledge. Janet Halley’s insightful analysis of the American military policy points out that the act-identity opposition has come to be managed by the U.S. government—and at the same time aufgehoben, “transcended”— through recourse to a new, hybrid, nonmedical category, namely, “propensity.” Halley’s conclusions are worth citing at some length: The most striking novelty of the 1993 revisions, shared by the New Department of Defense [DOD] policy and the Statute, is the regulation of persons with a propensity to engage in homosexual conduct. Both the New DOD policy and the Statute define homosexual “acts” to include “bodily contact which a reasonable person would understand to demonstrate a propensity or intent to engage in” an erotic, same-sex bodily contact. Coming-out statements and conduct short of sodomy are grounds for discharge inasmuch as they demonstrate intent or propensity. Moreover, under the Statute in all cases, and under the new DOD policy in cases initiated by a service member’s statement of homosexual identity, the service member can stay in the military only if she shows that she in fact

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lacks a propensity to engage in homosexual conduct. (Halley 1999, 57) Propensities, tendencies, and dispositions could, of course, be medically constituted and known. In theory, the investigation of propensity could be assimilated into the nineteenth-century framework of deep biopsychic identities—the legal facts presented as evidence of propensity could be regarded as “symptoms” of underlying illnesses or medicomoral identities. But, as I have argued in the context of alcoholism, the language of “propensities” and “dispositions” is useful in some contexts precisely because it is not irrevocably attached to the disciplinary gaze. It can also be employed precisely to avoid making “deep identity” claims. Dispositions and propensities are sometimes important building blocks in the more epistemologically modest framework of “governing out of habit” (Valverde 1998a, 1998b). For example, one can say that person X has a tendency to drink too much when going to the pub or that Scots have a propensity to drink a lot of whisky, without labeling that person or that group as suffering from alcoholic personality syndrome. And from the cases studied in detail by Janet Halley and other legal scholars, it seems that the military policy’s “propensity” is more of a commonsense notion about habits and tendencies than a disciplinary object. Telling your boss that you are going to a Gay Pride parade, for example, counts as evidence of a gay disposition. And, as will be shown in the next chapter in an analysis of the legal constitution of “Gay Pride Day” in Canadian human rights law, Pride Day is regarded by both government agents and participants as a cultural event, just like the St. Patrick’s Day parade, an event rather far removed from the Foucaultian/ disciplinary realm of secret desires and deviant identities. Admittedly a cultural community festival is, in the case of gays and lesbians, not as far removed from the disciplinary gaze as the St. Patrick’s Day parades today are removed from the nineteenth-century anthropological knowledges of racial inferiority that used to be the dominant knowledges of “Irishness.” This could be seen as motivating the U.S. Supreme Court’s unanimous 1995 decision to allow the very loose coalition of groups organizing the annual March 17 St. Patrick’s Day Parade in Boston to exclude from the march a group whose only sin was to wave a banner saying “Irish-American Gay, Lesbian, and Bisexual Group of Boston”—although this is merely speculative, since the court did not make either Irishness or homosexuality into an object of explicit analysis.1 Whatever the Court’s attitudes might have been, however, it is clear from the very fact that the only group out of a whole range of groups—including Irish nationalists denouncing British inter1 Hurley et al. v. Irish-American Gay, Lesbian, and Bisexual Group of Boston, Inc., 515 U.S. 557 (1995).

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ference in northern Ireland in inflammatory language—that was singled out for exclusion was the gay/lesbian contingent that the logic of multiculturalism is not always thought of as including “the gay community.” Sexual activity and erotic fantasy are not (or not yet?) readily talked about and managed through the toolkit of ethnic diversity and multiculturalism, although in some cases this toolkit is seamlessly deployed so as to construct “gays and lesbians” along ethnocultural lines. But while personal sexual identity is by and large still thought of in sexological terms, as the deepest and truest essence of one’s being, there are indications of a certain breakup of the disciplinary, inner-self paradigm. Janet Halley’s careful study of the “Don’t ask, don’t tell” policy shows that the language of “propensity” used by the U.S. Department of Defense is ambiguous enough to support both deep identity claims and more modest discussions about habits and tendencies. In keeping with the thesis of the waning or withering of “sexuality,” in the new DOD policy sexuality has been de-centered, or at least reconfigured. Saying “I am gay,” an act that is not strictly sexual, counts as important evidence of “proclivity” in the new paradigm. Some commentators have expressed horror at the way the U.S. government defines a certain speech act as a sexual act. But the old liberal (Kantian) argument that speech needs to be much freer than conduct is difficult to sustain in our present, for both theoretical and empirical reasons. Theoretically, those of us who reject the liberal distinction between speech and action and who agree with Judith Butler’s influential analyses of the performative, socially effective power of words and gestures have to accept that nonsexual activity—celebrating gay cultural holidays, for example—may become central to the definition of the “gay” style of life, for both the authorities that seek to ban such performances and those who engage in them. And, empirically, it is not only in the U.S. armed forces that the innocuous nonsexual speech acts of individuals are construed as more of a threat to the ordering of sexuality than acts one remains silent about: the Boston case cited earlier revolved precisely around the social effectivity, the actual harm, thought to be caused not by people having sex but rather by the mere waving of a “shamrockstrewn banner with the simple inscription, ‘Irish-American Gay, Lesbian, and Bisexual Group of Boston,” during a St. Patrick’s Day Parade. Indications of a breakup of the disciplinary deep identity model are particularly strong in legal fields that involve not individual bodies or psyches but rather group rights and community formation. In human rights cases, which usually have an individual plaintiff but are understood by all participants as defining the rights of specified minorities more than the acts or the identity of individuals, knowledges of sexuality are being deployed that are neither juridical/moral (sodomy is a

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sin) nor disciplinary (homosexuality is a deviant identity). These partly sociological, partly ethical, partly legal knowledges do not directly challenge the “deep personal identity” model of the self whose paradigm is the modern homosexual, but they go around it or displace it, taking us beyond discipline—or, as Tim Dean puts it from a different, Lacanian perspective, “beyond sexuality” (T. Dean 2000).2 It must be emphasized that we are not beyond sexuality just yet. In most jurisdictions in the world, gay people, particularly men and boys, can be and sometimes are prosecuted for engaging in particular sexual practices, either under gay-specific laws (e.g., the sodomy laws of many American states) or under facially neutral laws ensuring public decency and morality. The operation of these laws—which include not only criminal statutes but also policies such as those governing military bodies—has ancient historic roots in premodern sodomy and buggery prohibitions (L. Moran 1996); but today there is a tendency for courts and other stakeholders to think about such ancient laws in the terms of disciplinary identities, most notably “the homosexual.” The most notorious instance of this recuperation of sodomy for and into the nineteenth-century disciplinary paradigm was the U.S Supreme Court’s 1986 decision in Bowers v. Hardwick (478 U.S. 186 [1986]). A 6–3 majority of the court upheld the constitutionality of Georgia’s sodomy law—but not by remarking, as they might easily have done, that the antisodomy law covers both heterosexual and homosexual situations and is thus nondiscriminatory in regard to statuses and identities. On the contrary, the court, going out on a legal limb, argued that the privacy rights recognized in earlier landmark cases (Griswold v. Connecticut 381 U.S. 479 [1965], Roe v. Wade 410 U.S. 113 [1973]) were exclusive to heterosexuals and could not be exercised by deviants: “We think it evident that none of the rights announced in those cases bears any resemblance to the claimed constitutional right of homosexuals to engage in acts of sodomy” (Bowers v. Hardwick at 190–91). Homosexuals are, in fact, unmentioned in Georgia’s old-fashioned, Christian, actcentered statute. But this did not prevent the court from deciding that it is perfectly constitutional for Georgia police to take a facially neutral law against acts of sodomy and enforce it only against a particular identifiable group, homosexuals. And the particular practices of law enforcement in Georgia, which might have been authorized at a lower cost to national-level gay rights by invoking either police or administrative discretion, are used to generate the novel legal doctrine that privacy rights Dean’s argument partially converges with this chapter’s analyses when he invites us to imagine a future world in which “erotic desire would have been fully disarticulated from personhood” (T. Dean 2000, 21). 2

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are exclusive to heterosexuals. Georgia sodomy law, as interpreted by the U.S. Supreme Court, thus manages to achieve what Foucault might have called a “demonic” synthesis of (premodern) act-based governance and (modern) identity-centered governance.3 The complicated ways in which act-based governance persists alongside and interacts with identity-based governance in American law and policy have been carefully explored by queer legal theorists (e.g., Halley 1993, 1994; Thomas 1993; Cain 1993). But American queer legal scholars, who are forced by their courts to continue talking about sodomy as if nineteenth-century science had never existed, have said less about a more novel dimension of the legal governance of sexuality today—the dimension that one can discern under the recently invented term “sexual orientation.” While sexual orientation was invented to refer to a characteristic of individuals, the legally and socially effective meaning of “sexual orientation” has also been constructed in the course of litigation that does not involve a body, but rather a class, group, or community. As a feature of individuals, “sexual orientation” can function to cover exactly the same ground as “homosexual sodomy”; but in cases involving such group-based issues as the ability of municipalities to institute and enforce rules forbidding discrimination on the basis of sexual orientation, and, even more strongly, in the line of Canadian cases about whether mayors are obligated to issue proclamations celebrating Lesbian and Gay Pride Day if asked to do so, one can see a different kind of sexual formation, an entity that is neither an act nor a deep inner identity nor a combination of both of these but something like “a lifestyle.” SUSPECT CLASSES VERSUS EQUALITY RIGHTS: AMERICAN AND CANADIAN FRAMEWORKS FOR “ S E X U A L O R I E N TAT I O N ” L AW

Canadian law on human rights, as it pertains to lesbians and gays, has a different relationship to the act versus identity, conduct versus status opposition than American law. First of all, Canadian human rights law is not held back by the premodern machinery of sodomy laws, as it is in the United States. Homosexual acts are still criminalized and policed, primarily under federal gross indecency, soliciting, and bawdy-house laws. But neither indecency nor bawdy-house activity are regarded as In the Tanner lectures, Foucault analyzed the ways in which Judeo-Christian techniques for the pastoral governance of individual souls were articulated with Greek-derived models of political citizenship: “Our societies proved to be really demonic since they happened to combine those two games—the city-citizen game and the shepherd-flock game—in what we call the modern states” (Foucault 1988, 71). 3

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essentially gay. It was shown in chapter 3 that the police and the prosecution in the case of the trial of the Toronto gay bar Remington’s went out of their way to try to de-gay morality-squad prosecution work. Today Canadian law enforcement and legal officials try hard to avoid even uttering the word “gay”—when engaged in homophobic prosecutions, or adjudications of cases in which government officials have clearly acted in a homophobic manner,4 semantic neutrality is thought to be very important. (In the United States, of course, it is the word “Black” that is usually avoided in legal situations.) The formal equality being achieved is more than semantic, however: there are no longer any statutes or currently authoritative judicial decisions that explicitly target gay people or behaviors thought to be characteristic of gay people. Legal marriage is, in 2001, the last remaining area of heterosexual exclusivity in Canadian law: and even this may not last, given the cases now before the Supreme Court of Canada. Perhaps more important in the lived experience of state power, however, is that, in May of 2001, the decennial census includes a box for “common-law, same-sex spouses” in the list of types of relationship found in households. The decision of Statistics Canada to count same-sex couples, which arguably does more to normalize lesbian/gay families than any judicial decision, was followed by a decision to make it compulsory, as of the 2001 tax year, for same-sex, common-law couples to file tax returns together, just like married couples. In the United States, the absence of a common-law spouse category puts gay and lesbian couples in the position of having to go for broke and seek marriage, as was done in Hawaii (GoldbergHiller 2000). By contrast, in Canada the intermediate status of common-law spouse can be granted to gays and lesbians with less fuss. Apart from the absence of heterosexual common-law spousal recognition, the legal situation of gays and lesbians in the United States is also greatly affected by a more strictly legal factor, namely, the existence 4 In Little Sisters Book and Art Emporium v. Canada, a case in which a queer bookstore challenged the constitutionality of a customs statute under which officials were detaining and often impounding publications imported by their bookstore while leaving the same publications unexamined if imported by other more mainstream bookstores, the Supreme Court of Canada admitted that the officials had acted in an arbitrary and highhanded manner: but the majority went out of its way to assert that the test of obscenity elaborated earlier in the 1992 Butler decision (“risk of harm”) was totally neutral, refuting at great length the claim made by the bookstore and by various gay-positive groups and legal scholars that what is and is not “risk of harm” depends to some extent on the gender of the people depicted. The court thus separated the lowly officials, whose actions were admitted to be discriminatory, from both the majesty of neutral law and the assumed essential tolerance of the Canadian people, stating (rather against the evidence) that the test of obscenity “cannot reasonably be interpreted as seeking to suppress sexual expression in the gay and lesbian community in a discriminatory way” (para. 58).

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of a very powerful machinery for human rights protection that goes under the misleading name of “suspect class status.” Overturning sodomy laws or fully recognizing sexual orientation discrimination or both would pose a risk of indirectly authorizing same-sex marriages, since, once a group is declared to be worthy of the “suspect class” designation, every legal distinction constituting that group is suspect. In Canada it has been possible for various levels of government to grant gays and lesbians rights protection without frightening religious groups too much; but in the United States the specter of indirectly authorizing same-sex marriage through hasty rulings on discrimination in other areas will continue to prevent courts from granting sexual orientation anything like “suspect classification” status. As Gerstmann points out in a useful comparison that demonstrates that sex is still the truest truth in some areas, this is similar to the way that the specter of “miscegenation” held back civil rights law in the years around Brown v. Board of Education (347 U.S. 483 [1954]): It is no small step to declare that factors such as prejudice toward a particular group render democratic decisions regarding that group “suspect.” It means putting on the judicial table all manner of laws regarding that group. If segregation in the schools is suspect under a Carolene Products rationale [i.e., laws that separate races are presumptively suspect], then so must be segregation at the marriage altar. . . . Deciding that a group is a suspect class judicializes vast areas of social policy that are far removed from the case at hand. The same problems that kept the Warren court from relying on the political-process approach in Brown currently create enormous problems for gays and lesbians who challenge discriminatory laws under the equal protection clause. For example, if the Supreme Court had struck down the federal government’s policy of denying high-level security clearance to gays and lesbians by deciding that gays and lesbians are a suspect class, this would have important implications for the issue of lesbian and gay marriage. States would have to allow same-sex marriage unless they could demonstrate that they had a compelling reason not to. (Gerstmann 1999, 36– 37) In the United States, therefore, the “suspect class” logic means that since courts are unwilling to strike down at one fell swoop the vast majority of laws that distinguish on the basis of sexual orientation, gays and lesbians will find it very difficult to gain human rights protection on more than a case-by-case basis. Canadian courts, by contrast, have been able to proceed more developmentally, since courts “balance” the rights of individuals infringed by a particular law or state policy against state

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interests of various kinds, and the particular balancing calculation is usually put forward as specific to the situation. Furthermore, the “balancing” done by Canadian judges in constitutional cases always includes consideration of the question of whether the state is justified in infringing on citizens’ rights in this particular situation—section 1 of the Charter of Rights limits all the subsequently enumerated rights by reference to the customary practices of “free and democratic societies.” In most litigated instances, the government lawyers freely admit that a right has been infringed, limiting themselves to arguing that the infringement is justified because of some pressing public policy concern— for example, the criminalization of hate speech is acknowledged to breach freedom of speech, but the ban is justified by reference to the overarching goals of racial and cultural harmony. In the United States, by contrast, courts that seek to curtail rights have fewer legal resources with which to do it. Apart from the common-law spouse situation, the differential effect of specific rights decisions on the overall legal status of groups, and the absence in the United States of a universal tool for acknowledging but simultaneously authorizing discrimination (s. 1 of the Charter), a fourth difference between Canada and the United States is that, since the mid1980s, federal Canadian case law has only sporadically relied on the formalistic American logic of “suspect classifications.”5 Although social science evidence is rarely determinative in “equality rights” cases, Canadian courts are supposed to adjudicate such cases through a contextual consideration of the actual situation of historically disadvantaged groups (as the judge-made legal phrase calls them) or classes. It is not classification per se that is problematic; what is problematic in Canadian rights law is the reiteration of historical inequalities. The emphasis on historical disadvantage that has marked Canadian Supreme Court jurisprudence on equality since the groundbreaking assertion of the equal rights of noncitizens in the Andrews decision (Law Society of British Columbia v. Andrews [1989] 1 S.C.R. 143) has, to some extent, precluded anti-affirmative action legal backlashes. Men have successfully won the legal right to obtain benefits initially granted to women; but this kind of

5 Evan Gerstmann insightfully points out that the courts have not simply moved from a Burger-era concern with substantive rights to a Republican manipulation of the formal abstraction of “race” to restore white male privilege; rather, the substantive concept of “disadvantaged groups” coexists with formalism. “When gays seek to move up in the equal protection hierarchy, the courts tell them they are not a suspect class because they are not politically powerless. But when whites seek protection against affirmative action programs, . . . courts subtly switch terminology; they hold that race is a suspect classification and thereby protect whites from racial preferences” (Gerstmann 1999, 9).

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regressive liberal formalism has not been very evident in the area of culture, ethnicity, race, and religion. A fifth and final key difference between Canadian and American legal frameworks governing “sexual orientation” decisions is that the Canadian human rights system is not a pyramid-shaped hierarchy but rather a horizontal frame: particular groups or injustices can fight to be included, but without any one group or any one demographic characteristic having pride of place. Within the arena of American equality rights, only Black people and other racial or cultural minorities that have constructed themselves as similar to Blacks have managed to gain that important source of legal capital known as “suspect class status.”6 The Canadian system, by contrast, does not privilege one racial group over another, and, just as important, it does not privilege racial over other forms of discrimination.7 In Canada lesbians and gays have had to work hard to prove to courts that sexual orientation is what is called “an analogous ground of discrimination.” But in proving that discrimination against gays and lesbians is analogous to the discriminations that are explicitly forbidden in s. 15 of the Canadian Charter of Rights (on the basis of race, religion, sex, etc.), Canadian gays and lesbians have not had to prove that their identity or their discrimination is analogous to that of any one particular group. The framework of Aristotle’s metaphysics can help to clarify this crucial difference. The analogical thinking of American courts dealing with gay communities’ rights claims has to be organized around the paradigm of race and, within that, African descent as the paradigm case of the paradigm instance of discrimination. In the Canadian setting, however, the analogical reasoning proceeds without a paradigm. The parallel between lesbian/gay communities and ethnic communities has often been used with useful legal effects, but parallels to sex discrimination and to religion have also been drawn. And Canadian law and policy on multiculturalism does not deploy biological knowledges of “race” in the same way that American law does, something that has helped to construct sexual orientation as a matter of minority culture more than of biological variation. As a result of these distinct legal and epistemological contexts, human rights cases involving gay/lesbian communities or individuals have been adjudicated 6 Thus, in the United States “Hispanic” is a race whereas, in Latin America and the Caribbean, “race” refers to being white, black, and/or aboriginal, and “hispanic” is a marker only of culture and language, not race. 7 One could say that “status Indians” are legally privileged, but their unique legal situation arises not out of any human rights tradition but out of the old colonial fact that the British crown signed treaties with independent Indian nations that are still recognized in Canadian law. Thus Indians’ legal uniqueness is only contingently related to “race” and has much older roots than human rights law, which is a post–World War II creation.

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by Canadian tribunals and courts using the kind of nonhierarchical, atheoretical analogical reasoning praised by Cass Sunstein in an influential article (Sunstein 1993a), rather than by analogizing sexual orientation to race and gay people to African-Americans. A contingent effect of this framework for the production of legal knowledges of discrimination in Canada is that human rights victories by one group (in this case gays and lesbians) are not perceived as undermining the struggles of other groups. Gays and lesbians being “in” the Charter does not mean that Blacks or women are somehow less protected. In other words: there has been in Canada no legal encouragement to engage in invidious comparisons—in contrast to the demagogic appeal to racial minorities’ possible loss of distinct legal status in the homophobic activism in Colorado that led up to Romer v. Evans (517 U.S. 620 [1996]). The problems caused by the U.S. custom of ranking rights hierarchically were made particularly obvious in a well-publicized backlash against the gay-positive Rainbow curriculum on the part of New York parents of colour, to which we now turn. B I O L O G I C A L “ R A C E ” A S T H E PA R A D I G M C A S E O F D I F F E R E N C E : L AW ’ S RO L E I N P RO M O T I N G FA C T I O N A L I S M

In 1992 the New York City Board of Education introduced a new teachers’ guide for first-grade curriculum. The 443-page volume devoted 3 pages to “families,” highlighting the need for teachers to instill in their pupils respect for all kinds of families, including gay and lesbian families, in keeping with the multicultural logic of the guide’s theme: “Children of the Rainbow.” This synthesis of family values and pluralism met with a storm of opposition. Some of the opposition came out of the persistent belief that anything less than a horrified attitude toward the fact that some schoolchildren have lesbian or gay parents and some parents have gay kids amounts to a positive endorsement. The Seattle Times, for example, ran a story on the rainbow curriculum controversy under the cliched headline “Tolerance is one thing, approval another,” which read in part: Tolerance is the primary civic virtue of American pluralism. We agree to get along with people regardless of their beliefs and dayto-day behavior. Approval is quite a different matter. American institutions are not set up to approve various world views or to promote the values of those who hold them. That cultural struggle is being played out in schools and legislatures around the country. (Leo 1993, A6)

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The three pages about families in a teachers’ guide was quickly conflated by this columnist with a (nonexistent) gay-activist quest for “special” legal protection. What’s wrong with gay-rights laws? Gay activists argue that they are neutral, merely guaranteeing rights already enjoyed by the straight majority. But don’t they actually create a special protected class? . . . Creating these categories has these consequences. This path, taken for blacks, a truly victimized group, isn’t necessarily appropriate for other groups. (Ibid.) American Blacks are said to be “truly victimized”—indeed, so victimized that they appear not to have engaged in antislavery and civil rights struggles on their own behalf but to have been the beneficiaries of those kindly whites who chose a particular legal path “for blacks.” The logic that constructs victimization claims as the only path to citizenship, a logic critiqued very effectively by political theorist Wendy Brown,8 was in this case given extra force by the legal apparatus of “suspect classes.” The combination of these two factors (one politicocultural, one legal) has, in the United States, led to a zero-sum citizenship game in which victories are too often perceived to take place at the expense of another marginalized group. Janice Irvine, a sociologist who has written very insightfully about the history of American sexology, used the Rainbow curriculum controversy to highlight the often nasty political effects of the zero-sum game of “special protection” for the “truly victimized,” as it played itself out not in the courts but in the arena of the New York school board (Irvine 1996). Not only did the positive mention of gay families get negative responses from the right-wing promoters of Christian morality, as was undoubtedly expected by the board officials who reformed the curriculum, but spokespeople for other disadavantaged minorities, who might conceivably have supported extending the Jesse Jackson, racial rainbow trope to encompass the gay rainbow, were also widely cited as opposing the changes. The situation here was not unique. A similar move was made by some antiracist activists in the Evans v. Romer gay rights case. At the district court level, two former members of the Colorado Civil Rights Commission, including one with a Hispanic name, both testified that “without Amendment 2 there would be a dilution of protections afWendy Brown’s influential book, States of Injury (Brown 1995), provided an insightful Nietzschean analysis of the politics of victimology. For more on Brown’s book and the identity-politics debate, see Valverde 1999c. 8

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forded to existing suspect classes” (Evans v. Romer 882 P.2d 1335 [1994], District Court of Colorado, Denver County, December 14, 1993). Although one must be wary of media tendencies to set off one group against another intentionally, there is some evidence that in the New York Rainbow curriculum controversy some stakeholders did “play the race card” in such a way as to silence the voices of racial minority parents and teachers who were also gay-positive or gay, very much like the two former members of the Colorado Civil Rights Commission testifying in the Romer v. Evans case. On the nationally broadcast popular TV news show “60 Minutes,” a New York school board official apparently said: How dare they compare themselves to blacks, who’ve had to struggle . . . for over 250-some years? They have no special language, no special clothing, no special food, no special dress-wear, so what . . . makes them a culture? They don’t fit into any definition of what a culture is. They are using the racial issue as a way to open doors. How dare they? (Cited in Irvine 1996, 218) Irvine uses the controversy primarily to argue that lesbians and gays do indeed form a minority culture and, secondarily, to suggest that “culture” does not have to imply a single group history or monolithic standards of taste and behavior. Her sensible argument about the need to claim “minority culture” status vis-a-vis ` the mainstream, thus taking advantage of the multicultural paradigm while at the same time taking queer theory’s point that lesbian and gay identities are highly fluid and contested, makes a useful contribution. But it is a symptom of the very condition she purports to ameliorate that, in arguing for a certain tactical use of the culture trope and inviting lesbian and gay activists to claim minority culture status without policing the boundaries of “gay” culture, Irvine appears to suggest that only queers are able to perform such a sophisticated political move. Speaking about New York City parents of color who complained about the way that lesbians and gays were trying to ride the wave of multiculturalism, she claims that “they” compared the allegedly stable and indisputable cultural categories of race and ethnicity with the purportedly ridiculous and fictive notion of lesbian/gay culture. “They want to teach my kid that being gay fits in with being Italian and Puerto Rican!” one parent cried. Some African-American critics were incensed by comparisons of lesbian and gay politics and culture to the black civil-rights movement. At one community schoolboard meeting, a parent and teacher said: “Years of being thrown in jail for demonstrating against racism and being sprayed by fire hoses taught me some-

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thing. I ask you where was the gay community when school children died in Mobile, Alabama?” (Ibid., 217–18) The parent/teacher cited here was obviously engaging in the zero-sum citizenship game in a most unproductive manner; however, the way Irvine writes about this situation compounds the problem by intimating that Blacks and other people of color have an essentialist view of their identity, a generalization that has the effect of reinforcing white gays’ and lesbians’ racist prejudices. Few American white queer writers have noted that not all Hispanic and African-American intellectuals and activists treat “race” as a “stable and indisputable category,” as Irvine claims. The failure to mention the diversity of viewpoints within African-American communities has the effect of putting queer theory on a higher intellectual plane than critical-race and other African-American intellectual traditions. “They” (Blacks?) deploy stable, homogeneous notions of racial identity; “we” (sophisticated queer theorists) have gone beyond that. In the hands of careful thinkers with progressive politics, like Wendy Brown and Janice Irvine, there is only a glimmer of this kind of argument; but in the hands of less careful, more vanguardist writers, the whiff of postmodern contempt for identities imagined to be more fixed than queer identities becomes the self-serving claim that being queer is somehow a more interesting condition than being Black. A vanguardist approach that one could characterize as reverse cultural snobbery (the more fluid one’s identity, the more cultural capital one has) can be found, for example, in a 1997 anthology entitled Pomosexuals (Queen and Schimel 1997). The title of this book would be humorous if deployed ironically, but the authors do not acknowledge that they are fueling the worst nightmares of rank-and-file antiracist activists whose support for sexual rights may be lukewarm in the first place. One of the reasons why even the best-intentioned people often end up in slinging matches about whose oppression is either deeper/more fundamental or more fragmented and hence more theoretically interesting is that few activists or scholars engaged in these debates are aware of the important ways in which American politics has been “legalized”— not only because court battles often take the place of other politics but also because, in ordinary, low-level political struggles (e.g., around school policies), Americans of all political stripes are very quick to invoke legal fetishes, from the First Amendment to the Fourteenth, as if they adequately named and captured the experience of oppression.9 No 9 Through their dissemination on U.S. television accessible in Canada, these fetishes also have much currency in Canada; criminal defense lawyers in Toronto are fond of recount-

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doubt homophobia was in the air during the “60 Minutes” show mentioned above, but homophobia exists in Canada too, and in other countries, without having the same political effects. That some U.S. Black and Hispanic parents experienced the new gay-positive curriculum as a direct threat, while undoubtedly related to the persistence of homophobia in many otherwise progressive American circles and to the notorious factionalism of American interest-group politics, also has a distinct legal root. This is, of course, the special status of AfricanAmericans and other minority races in constitutional doctrine and in the everyday legal and quasi-legal practices that are (often weakly) linked to the Constitution’s “equal protection” clause of the Fourteenth Amendment. The hierarchy of rights framework provided by “suspect class” jurisprudence does not have to be taken as a given, of course. One of the most eloquent challenges to the zero-sum citizenship game described above was presented in an amici curiae brief (1994 U.S. Briefs 1039) presented to the U.S. Supreme Court in the gay-related Romer v. Evans case by a group of antiracist organizations, including the National Association for the Advancement of Colored People (NAACP). Unlike the more timid brief presented by a group of constitutional lawyers headed by Laurence Tribe, discussed in many of the legal commentaries on the case, the brief submitted by Jewish, Black, and Latino groups was not mentioned in any of the commentaries I have read, and its significance remains untheorized by queer legal scholars. This is very unfortunate, for, whatever its immediate legal value, the brief courageously opens up possibilities for a coalition-based (rather than a zero-sum) jurisprudence of equality—and makes visible to queer and other activists the pro-gay side of venerable antiracist organizations like the NAACP, a side that went unmentioned in the New York Rainbow curriculum polemics. The amici curiae brief was written by Pamela Karlan and Eben Moglen on behalf of the Anti-Defamation League, the Asian American Legal Defense and Education Fund, the Japanese American Citizens League, the NAACP, the national Council of La Raza, People for the American Way, and the Puerto Rican Legal Defense and Education Fund. This brief did not argue that sexual orientation is a deep identity or a series of acts or anything else. In contrast to other texts produced by queer legal scholars that implicitly assume that biological or cultural knowledge claims about sexual orientation have to ground legal projects such as seeking “suspect” status for state classifications that divide people according to sexual orientation, this brief avoids making any ing how their clients attempt to “plead the Fifth Amendment” only to be told by the judge that “we are not on television,” meaning “we are not in the United States.”

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claims about sexual orientation at all, other than noting that the state of Colorado was using a legal tool—Amendment 2—to create a suspect class where one had not previously existed. In this way the brief recognizes the effectivity and performativity of political and legal innovations. The brief then argues that, for the same reasons that strict scrutiny has been employed in the judicial review of racially based classifications, Amendment 2 is patently unconstitutional: Historical denial of the formal protections of the law is the characteristic that distinguishes those social groups which are treated as “suspect classifications” for equal protection purposes. African-descended Americans were denied all access to the Federal courts before the Civil War, as aliens, women, and illegitimate offspring were traditionally denied legal protection by the common law. . . . These are the classifications which the Court has found to trigger heightened scrutiny when legislatures disadvantage particular groups. The Court has never held that the class of suspect classes is closed. Amici [that is, the organizations subscribing to the brief ] submit that Amendment 2, by formally denying equal access to legal protections, makes the object of its hostility into a suspect classification. Strict scrutiny should be accorded to Amendment 2 because it attempts to reduce gays to the status of a powerless discrete and insular minority. The protection of our Constitutional ideals demands no less. Our own history, and the bloody course of the twentieth century, have taught us all too well what happens when minorities are denied legal protection. (My emphasis) Rather than attempting to maintain their hard-won special status as protected groups, the antiracist groups that joined together for this brief are here declaring that to attack any definable minority is to attack everyone’s rights. This politically courageous formulation of a noncompetitive, non-zero-sum citizenship game is accompanied by an analysis that, without waving theoretical flags, is nevertheless congruent with the post-identitarian, “dermatological” approach that I have advocated throughout this book. The brief circumvents and sidelines the act versus identity, conduct versus status debates by pointing out that, if homosexuals are a “suspect class,” that is only because homophobic law makes them into such a group, not because of any inner features. A clearer statement of law’s constitutive powers could not be found. The analysis of law’s performativity is, furthermore, historically specific. The brief states: “The reason why so many of the salient cases in this area [political rights] involve racial discrimination is that, before the upsurge of antigay sentiment that produced Amendment 2 and its counterparts in other jurisdictions, racial and ethnic minorities were the usual targets.” Unfortunately the pragmatic and contextual approach of the amici

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brief just cited has not prevailed. In recent years a whole subgenre of critical legal scholarship has concerned itself with the question of whether gay rights claims brought forward in human rights cases can deploy the resources of existing jurisprudence on “equal protection,” a jurisprudence that originated with efforts to create a political framework not for “equality” in general but for redressing the political and legal fallout of slavery and Jim Crow. Some legal writers have presented detailed arguments for using legal tools developed in the context of seeking legal equality for African-Americans to redress injustices against gays and lesbians (e.g., Gerstmann 1999; Cain 1993). A noted legal scholar, William Eskridge, has made apartheid and Jim Crow the fundamental metaphors for his project to develop a framework for gay rights, a framework he calls the abolition of “the closet”—meaning the prejudices and legal handicaps that make it necessary for gays and lesbians sometimes to conceal their identity (Eskridge 1999). The legal debates tend to assume that one needs to decide whether gays are “in fact” like Blacks (with Eskridge and most other gay legal scholars answering yes). But this is a misleading question, full of political and ontological pitfalls, which, the Anti-Defamation et al. brief shows, need not be entertained in order to provide lesbians and gays with the same legal protection as racially marked groups. More generally, the legal arguments about whether gays can be construed as a suspect class along the same lines as African-Americans rarely question the knowledge production that has gone on and is continually going on such that “sexual orientation” can even be discussed. The comparison game only reinforces the taken-for-granted status of categories that are much more historically and culturally specific—and much closer to being created by law and politics—than legal and political discourses suggest. In the same way that critical-race scholars have challenged not only the legal status of people of color but also the knowledge processes through which people have been legally racialized in different ways, so, too, it is important to examine the variety of ways in which sexual activity between people of the same sex is grasped in thought. If that is our goal, then the necessary means include sketching out the genealogy of “sexual orientation.” This task goes beyond the scope of this book, but it is possible here to provide some signposts toward such a genealogy by mapping the deployment of a variety of knowledges of sex and sexuality for legal purposes. F RO M H O M O S E X U A L S O D O M Y T O S E X U A L O R I E N TAT I O N

The key case governing gay bodies in the United States, Bowers v. Hardwick, constructed a two-headed beast of the criminal law: “homosexual

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sodomy.” This was concocted by articulating the Christian, act-based concept of sodomy as “the crime not fit to be named among Christians,” as Blackstone’s legal commentaries famously put it, with the newer, more scientific identity category of the homosexual (Halley 1993, 1997; K. Thomas 1993). The significant differences between moral knowledges of acts and disciplinary knowledges of psy identities were thus papered over through the same move that also erased the important legal distinction between acts and statuses. The two-headed beast fabricated by the Supreme Court in 1986 started to show its fracture lines, however, during the protracted debates in Congress and throughout the public sphere on the military’s policy on homosexual acts/homosexual soldiers—as Janet Halley has shown in her book on the subject, aptly entitled Don’t (Halley 1999). In an analysis cited at the beginning of this chapter, Halley picks apart the circular logic by which, in those debates, acts were seen to be actionable because they indicated a permanent identity, while identity, in turn, was defined as nothing but a “propensity” to commit certain acts—not just sexual acts but also social acts such as uttering the fatal phrase “I am gay.” The huge volume of media and scholarly analyses generated by the “gays in the military” controversy included many contributions highlighting the patched-together character of the two-headed beast of “homosexual sodomy.” By the mid-1990s homosexual sodomy was still alive and well in the criminal law (and, indeed, remains alive and well to this day): but, in other spheres, formulations were emerging that circumvented or foreclosed the “bad infinite,” as Hegel would say, that had legal actors oscillating between act versus identity, conduct versus status. To break through this impasse, this unsolvable dilemma, “propensity,” “proclivity,” “preference,” and “orientation” became the terms of choice in the debates that emerged about extending group rights. In Colorado (as in the state of Oregon), Christian right-wing forces campaigned against the antidiscrimination ordinances and policies that had been put in place in the cities of Aspen, Denver, and Boulder, and in institutions such as universities. Feeding off the considerable energy of the anti-affirmative action backlash that was sweeping the country as a whole, the Family Values Coalition of Colorado managed to get a referendum on a proposed amendment to the state constitution that would not only overturn these ordinances and policies but, more radically, would prohibit “all legislative, executive, or judicial action at any level of state or local government designed to protect the status of persons based on their homosexual, lesbian, or bisexual orientation, conduct, practices, or relationships.”10 10

The wording of the amendment and its legislative and judicial history is provided in

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The gay-positive challengers to the amendment argued strongly that the proposed new law was aimed at “orientation,” and thus at a specific, identifiable group of persons. Knowing all too well that Bowers v. Hardwick was still the law of the land, they chose to draw a very sharp line separating the amendment from criminal sodomy statutes (even though the state of Colorado did not have such a statute). Since the wording of the amendment included “orientation” as well as “conduct,” the gay-positive side could sidestep sodomy altogether, focusing instead on the amendment’s attack on the political rights of the gay/ lesbian community as a group, and thus deploying the considerable case law on the right to participate in the political process. This case law has developed almost exclusively in the context of the historic disenfranchisement of African-Americans; but, given the peculiar wording of Amendment 2, it could be made to work for the gay/lesbian cause. Although the precise legal tactics varied from trial court to the Supreme Court, on the whole the gay-positive side used the case law on “equal protection” and on political rights not to argue for “suspect class” status for gays and lesbians but, more modestly, to back up the claim that gays and lesbians as a group were being denied the basic legal right to participate in the political process. The state’s lawyers were left in the difficult position of having to defend a legal text that clearly targeted a particular, identifiable group. The group targeted by the amendment was distinguished in the legally incautious text drawn up by the Family Values Coalition not only through the commission of arguably criminal or at least immoral acts (“conduct”)—a position that might well have been justified under Bowers and also, by analogy, to felon disenfranchisement laws—but also through the more legally problematic invocation of a distinct identity (“orientation”). During the oral argument at the U.S. Supreme Court, one of the justices asked the lawyer representing the state of Colorado to explain whether the impugned amendment to the Colorado constitution was about acts or about identity: “Incidentally, how do you interpret the bisexual orientation language, homosexual, lesbian or bisexual orientation? Does that require any conduct, or is it just a disposition? (oral argument on Romer v. Evans [1996], October 10, 1995, available in Westlaw). The state’s attorney admitted that the impugned amendment was rather fuzzy on this point, adding, a bit later: “It is unclear whether conduct defines the class.” Another justice then piped in: “We have to assume that orientation means something more than conduct.” But this rather crucial point was left unresolved in the argument. Other justices the Supreme Court’s decision (Evans v. Romer); see also the detailed analysis in Gerstmann 1999).

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offered up terms such as “proclivity” and “preference,” but whether these terms are synonyms for “orientation” the state left unanswered. The question raised in many of the military cases about the precise nature of homosexual conduct—Are speech acts and social acts sufficient evidence of homosexual “proclivity” even in the complete absence of any documented sexual behaviour?—was also left unresolved. The epistemological dust raised by Amendment 2 meant that a majority of the Supreme Court justices was able to strike down the amendment for its unconstitutional imposition of a political handicap on an identifiable sociopolitical group without making any claims about the reality of fuzzy objects such as act, identity, disposition, and proclivity. Without even mentioning the Hardwick decision, as if sexual orientation discrimination were in a different universe from the “homosexual sodomy” paradigm, they concluded that the amendment was an exercise of “animus” against an identifiable group and was thus unconstitutional.11 As Janet Halley insightfully points out, it was the virulently homophobic dissent written by Justice Scalia, analogizing homosexuals to murderers and to those who abuse animals and arguing that statesanctioned disapproval of such people is perfectly constitutional,12 that maintained epistemological rigor. For Scalia, if homosexuality is a sin and vice, then it is perfectly permissible for right-minded Christian family men to hate homosexuals—a position that, however ethically problematic, has the virtue of being coherent. The majority decision, by contrast, “proposes to take the sex out of homosexuals” (Halley 1997, 433). What is left when you take the sex out of homosexuals, I propose, is precisely “sexual orientation.” The consolidation of “orientation” as a postsexual category—as a question of sociopolitical practices—was thus achieved more or less at one fell swoop (in contrast to the Canadian situation, which was characterized by a very gradual, slow accumulation of uncoordinated gay rights victories in different tribunals and courts). And, in keeping with the overall argument of this book about the comfortable coexistence of Romer v. Evans. The court’s reasons, however, were not the same as those of the Colorado Supreme Court; equal protection case law was used in very different ways to achieve the same result. The complexities of these decisions and their precedent value do not concern us here, however. 12 “Of course it is our moral heritage that one should not hate any human being or class of human beings. But I had thought that one could consider certain conduct reprehensible—murder, for example, or polygamy, or cruelty to animals—and could exhibit even ‘animus’ toward such conduct. Surely that is the only sort of ‘animus’ that is at issue here: moral disapproval of homosexual conduct, the same sort of moral disapproval that produced the centuries-old criminal laws that we held constitutional in Bowers v. Hardwick” (Romer v. Evans, 644). 11

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quite contradictory modes of governance, the Romer v. Evans majority did not feel that their comments about the need to tolerate gay political activity in any way undermined the Hardwick two-headed beast of homosexual sodomy. In the next chapter I deepen the genealogy of “sexual orientation” by moving the focus north of the forty-ninth parallel to some Canadian human rights tribunals charged with resolving the issue—an issue that would be unthinkable in the U.S. context—of whether mayors who regularly issue official proclamations endorsing such community happenings as Italian Heritage Week are obligated to respond positively to demands from the gay/lesbian community that their national holiday, Gay/ Lesbian Pride Day, receive symbolic acknowledgment in the shape of a mayoral proclamation. The Pride Day cases, it will be shown, take a rather large step in the direction of “taking the sex out of homosexuals,” to use Janet Halley’s phrase: the legal object in question is a community event, not a body, a desire, or even a deep identity, and the knowledges that constitute and define this event are neither theological nor psychological—they are political, cultural, and sociological.

CHAPTER FIVE

“The Lifestyle That Fits the Doctrine of Sexual Orientation” ✦ Twenty years ago, lesbians and gay people did not speak in terms of “sexual orientation,” either to describe their psychosexual identity or to give a name to political struggles. “Gay liberation” was the most popular term of art in the late 1970s and early 1980s. This analogized the homosexual rights movement to women’s liberation (which had not yet been replaced by feminism) and to national liberation movements. The term “gay liberation,” however, has now become archaic. Politically both activists and politicians speak about “the gay movement” or about “sexual orientation issues”; even at the personal level, many lesbians and gays speak about “my sexual orientation.” “Orientation” is a curiously multivocal term. It had been used by Freud and other psychoanalytic thinkers to some extent, although they favored “object choice” in their discussions about sexuality. Nowadays “orientation” is rarely used in biomedical discourses. American psychiatry, in particular, has eschewed “orientation” and any other terms indicative of habits and dispositions, preferring to stick to observable behavior in its elaboration of nomenclature and diagnostic criteria. (Similarly drug dependence is described in the American classification as involving physiological dependence, whereas the European manual, the International Classification of Diseases, mentions purely psychic phenomena among the diagnostic criteria.) Before gay activism, both within and without psychiatric circles, resulted in the removal of homosexuality from the list of mental illnesses,1 the American psychiatric bible, the Diagnostic and Statistical Manual II (1968 edition), listed “Homosexuality” as one entry under the largely behavioral category of “sexual deviation.” On its part, American sexology also avoids making any claims about either desire or deep identity: Kinsey famously focused exclusively on acts, eschewing categories as tenuous as “proclivity” or “orientation.” A term with a somewhat confusing pedigree, then, “orientation” had emerged as a powerful category in the first attempts, back in the 1970s, 1 A good account by a key participant in this struggle over biomedical knowledges is Spitzer 1981. See also Rubenstein 1995.

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to seek redress for discrimination against homosexuals. When formulating claims about discrimination, activists and lawyers had to find a term that would be to gays and lesbians what “gender” is to women and “race” is to African-Americans: a neutral, formalistic term indicating a basis of classification but without appearing to privilege a specific, substantively defined class. Hence “sexual orientation” was invented—not exactly by law but certainly “in the shadow of the law.” The details of how and where this term came into general use await a full legal-sociolinguistic study;2 but legal databases show this term first appearing in statutes in the early 1980s.3 In 1984 “orientation” had not prevailed over other potential competitors. The Supreme Judicial Court of Massachussetts was asked by the state senate to clarify whether “sexual preference” in antidiscrimination statutes was synonymous with “sexual orientation,” and, if so, what the term meant. The Court ruled that “preference” and “orientation” are synonymous, a decision in keeping with popular as well as legal usage, and concluded that wherever definitions had been provided in statutes and ordinances, preference/orientation has meant “male or female homosexuality, heterosexuality, or bisexuality”—and nothing else (Op. JJ. to Mass. Senate, N.E.2d, 1192–94 [1984]). This court’s opinion converged with what many activists were doing. Although the term could have been used to cover groups such as transsexuals or pedophiles, gay/lesbian activists ensured that no such semantic slippage would occur, a slippage that would have had negative consequences for the somewhat more respectable “gays” and “lesbians” who were initiating human rights complaints and lawsuits (Phelan 2001). In some of the cases in which I acted as expert witness (as a “sociologist of sexuality”), I was asked in hostile cross-examination whether allowing sexual orientation protection would mean that pedophiles could now claim antidiscrimination protection. This forced me to reply that “sexual orientation” meant “the distinction between homosexuality and heterosexuality,” a reply that had the effect of providing extralegal, “expert” support for the kind of decision that courts were, in the mid- and late eighties, already making. Transgendered and transsexual people have pointed out some of the problems arising from attempts to reduce the complexity of sexual experience to two “orientations” (or three if bisexuals are included, as 2 The Encyclopedia of Homosexuality (Dynes 1980) states, without references, that “the widespread adoption of the expression is related to the 1970s popularity of such compounds as action-oriented, identity-oriented, and success-oriented.” 3 The Canadian province of Quebec was the first jurisdiction to include sexual orientation as a prohibited ground of discrimination in its human rights code. See Stychin 1998, 89–114.

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they often are, although it could plausibly be argued that bisexuality is nothing other than a combination of heterosexuality and homosexuality). In the future we may see a move to amend the legal tools of sexual orientation discrimination to include transgendered and transsexual people—although this becomes increasingly difficult as the number of court decisions and statutes that specifically recognize homosexuality and bisexuality proliferate. Even if that happens, however, increasing the number of legally recognized orientations would not challenge the legal fetishism at work in “sexual orientation.” By the 1990s the term had managed to shed or erase its own origins in the political maneuvering undertaken with a view to changing the law. Gay and lesbian activists, as well as ordinary, nonpolitical gay people, began to talk about “my sexual orientation” as if it were a deep truth rather than a legal term of art. Mistaking law for life is, of course, a general problem in litigious societies, but it is not a universal error: among aboriginal people of North America, just to name one counterexample, an often sharp distinction is made between the legal categories created by the state (“Indian” versus “non-Indian”), on the one hand, and, on the other, the experiences of people oppressed on the basis of aboriginality—experiences often discussed in terms of a specific nation (Mohawk, Cheyenne, etc.) and/or the racism that affects all aboriginal peoples regardless of legal status. In contrast to the long history of native people’s skepticism toward the colonial state, North American gay and lesbian activists’ more generally cheerful attitude toward the state (e.g., Smith 1999; Phelan 2001) is made visible in the fact that the important distinction between life and law—or, as Adrienne Rich famously put it, experience and institution (Rich 1978)—is often elided. The erasure of the legal—and, more specifically, liberal legal—origin of “sexual orientation” is not simply a matter of political optimism or legal naivety. Whatever people’s attitudes, the legal process produces its own fetishism. Most important, the law of evidence puts pro-gay lawyers and witnesses in the situation of having to refer to “sexual orientation” as a natural or quasi-natural entity preexisting law. In commonlaw systems, particularly in those jurisdictions with a great deal of judge-made equality law, elaborate epistemological strategies have to be concocted by any group seeking novel judicial decisions. And when seeking to have courts force governments to recognize a certain identity as a social fact, one has to emphasize its ontological pre-legal solidity (Valverde 1996). In one of the first human rights tribunal cases in which I contributed a sociological expert-witness affidavit, for example, I went out of my way to define “sexual orientation” not as a legal fiction but rather as a matter of deep identity. I then attributed the popularization of this term

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not to legal necessities but to the psy sciences’ sudden enlightenment, which was (wishfully) said to have led to a search for a more neutral term for scientific studies of sexual identity formation. I wrote: Professionals in various scientific fields have been led to replace the old question “what causes homosexuality?” by a new and more objective question, “what determines sexual orientation?” No consensus exists about the answer to this latter question; however, one thing which the vast majority of sociologists would accept as true is that sexual orientation (whether heterosexual or homosexual) is an intrinsic and very important part of any individual’s identity. (Affidavit of Mariana Valverde in Kyle Rae and Lesbian and Gay Pride Committee v. Arthur Eggleton and the corporation of the city of Toronto, Supreme Court of Ontario, unreported) In this instance—and in several other subsequent cases—I made sexual orientation into a psychosocial object discovered by the social sciences. This was a problematic move to say the least, not only because of the reification of “sexual orientation” but also because it misrepresents science, since, although my statement was not false, science still seems much keener to ask, “What are the causes of [male] homosexuality?” than to institute broader inquiries into sexual orientation. Until it became solidified through much use in antidiscrimination cases and local ordinances and policies, “sexual orientation” had to be introduced de novo in each case as an extralegal, indeed pre-legal, fact. Expert-witness evidence about the existence and nature of sexual orientation, however, is no longer required in Canadian human rights law. This is seen in the 1997 decision of the Supreme Court of Canada on a question similar to that raised in the American case Romer v. Evans— namely, whether the province of Alberta could purposefully exclude sexual orientation from the provincial antidiscrimination statute. The Supreme Court countered the government of Alberta’s claim that “sexual orientation” was too vague a term with the rebuff that “ ‘sexual orientation’ is a commonly used term with an easily discernable common sense meaning” (Vriend v. Alberta [1998] 1 S.C.R. 493 at para. 156; my emphasis). Having made this claim, the justices then proceeded to use the term in a post-Foucaultian manner, that is, without any reference either to deep psychic desire or to sexual activity. The group protected by sexual orientation provisions is described in the same language used to characterize cultural and linguistic minorities: “Gay men and lesbians are treated differently from other disadvantaged groups and from heterosexuals. They, unlike gays and lesbians, receive protection from discrimination” (para. 86). Again using Canadian multiculturalism as a cookie-cutter model applicable to gays and lesbians, the

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Court stated: “In excluding sexual orientation from the IRPA [the impugned statute]’s protection, the Government [of Alberta] has in effect stated that ‘all persons are equal in dignity and rights’ except gay men and lesbians. Such a message, even if it is only implicit, must offend” (para. 104). Because in Canada multiculturalism is a state project, and indeed even a state religion, Canadian human rights law does not insist on strict content neutrality: case law on rights issues has long acknowledged that legally neutral provisions often have what is known as “disparate impact” on “historically disadvantaged groups.” In keeping with this nonformalistic disparate impact doctrine, the Supreme Court stated: It is possible that a heterosexual individual could be discriminated against on the ground of sexual orientation. Yet this is far less likely to occur than discrimination against a homosexual or lesbian on that same ground. It is thus apparent that there is a clear distinction created by the disproportionate impact which arises from the exclusion of the ground [sexual orientation] from the IRPA. (Para. 82) The Court also stressed that discrimination need not be directly performed by state agencies in order to be actionable: The potential harm to the dignity and perceived worth of gay and lesbian individuals constitutes a particularly cruel form of discrimination. Even if the discrimination is experienced at the hands of private individuals, it is the state that denies protection from that discrimination. Thus the adverse effects are particularly invidious. (Paras. 102–3) When both these claims are added together, the conclusion that inevitably follows is that the referent of “sexual orientation” is neither a series of acts nor a deep psychic identity nor a formalistically conceived name for a difference. Much more specifically, in Canadian law “sexual orientation” functions to name a disadvantaged cultural minority that has historically suffered from the prejudice of the majority. Once constructed in this manner, sexual orientation cannot help but appear as a ground of prohibited discrimination. Continuing this logic, and in keeping with state policies around multiculturalism and its promotion, Canadians are exhorted by the Vriend Supreme Court not only to treat people in a tolerant manner but actively to respect and value differences.4 4

As Rebecca Johnson and Thomas Kuttner show, this extension of multiculturalism

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It is easy to say that everyone who is just like “us” is entitled to equality. Everyone finds it more difficult to say that those who are different from “us” in some way should have the same equality rights that we enjoy. Yet so soon as we say any enumerated or analogous group is less deserving and unworthy of equal protection and benefit of the law all minorities and all of Canadian society are demeaned. . . . [I]f any enumerated or analogous group is denied the equality provided by s. 15 [of the Charter of Rights and Freedoms] then the equality of every other minority group is threatened. That equality is guaranteed by our constitution. If equality rights for minorities had been recognized, the all too frequent tragedies of history might have been avoided. It can never be forgotten that discrimination is the antithesis of equality which will foster the dignity of every individual. (Para. 69) Let us summarize, then, the theory of sexual orientation deployed in Vriend. The novel term “sexual orientation” is, first of all, said to have a “commonsense” meaning. This commonsense meaning is then said to be the binary distinction between heterosexuals, on the one hand, and “gay men and lesbians,” on the other. This distinction is not formal and hence not symmetrical: mediated through the “disparate impact” doctrine, it is clear that discrimination against “historically disadvantaged groups,” specifically gays and lesbians, is the proper target of rights law. Most significant, in keeping with the “mosaic” image that dominates official Canadian discussions of multiculturalism (a trope routinely contrasted with the more assimilationist American “melting pot”), the Supreme Court proclaims that gays and lesbians can gain equality rights without losing or having to hide their cultural specificity. That this series of moves deploys “common knowledge” to exclude transgender and transsexual people from the reach of the gay-positive decisions is not considered. All that is visible is the admission of “gays and lesbians” into the field of full citizenship. In the United States a more complex epistemological situation prevails. “Sexual orientation” as a vector of historic inequalities and current-day prejudice has a relatively firm existence and meaning at the level of company policies and municipal ordinances, but has a much more uncertain status at higher levels. Semantic and political consensus has not been achieved. One idiosyncratic use of the term “sexual orientation,” for example, appears in the dissent of a right-wing judge of the Supreme Court of Colorado in Evans v. Romer (1994). Judge Erickson into the sphere of gay rights did not go unchallenged: the Vriend decision was greeted by numerous hostile comments about the way the federal Supreme Court had interfered with the provinces’ jurisdiction over human rights law (Johnson and Kuttner 2000).

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first claimed, rather astonishingly, that “a series of constitutional amendments and acts of Congress have authoritatively settled the place of race and sex in American life”—and then added, “The same simply cannot be said of non-traditional sexual orientation” (Judge Erickson, footnote 31, Supreme Court of Colorado in Evans v. Romer, 1993 Colo. Lexis 628). In the heyday of psychiatric discourses on deviance, homosexuality would never have been described as “nontraditional”: delinquency, alcoholism, and sexual deviance, the ghosts that haunted 1950s social science, were deviant on an absolute scale, and there was nothing new about them. Calling homosexuality a nontraditional orientation has the effect of shifting the legal gaze away from the sexual body and onto social and cultural change, something that both judges and activists are doing: on both sides of the culture wars about homosexuality, “discourse about the rights of gays and lesbians is now only tangentially about the gay body and gay practices” (Goldberg-Hiller 2000, 114). Bodily sexual practices are sinful or not, normal, deviant, or neutral, but they are neither traditional nor nontraditional. It is the lifestyles visible in gay and lesbian villages from Manchester to San Francisco, produced by what Jeffrey Escoffier calls “the [gay] territorial economy of the late 1970s,” that can be said to be nontraditional (Escoffier 1998, 75). The construction of gay life as a matter of urban lifestyle—living in or spending one’s leisure time around particular neighborhoods and engaging in specified political, philanthropic and consumer activities—will be explored below. But it is necessary first to examine an older epistemology of sexuality that coexists with the newer, “nontraditional lifestyle” focus on the visible minority communities in urban spaces. This is a way of visualizing sexual diversity that, following the German-Jewish gay sexologist Dr. Magnus Hirschfeld, can be called the “benign variation” paradigm. Hirschfeld, who can be regarded as the first gay scientist in that his scientific work was closely linked to his political activities, and who played a larger public role in Weimar Germany than any gay scientist has done in North America today, argued that homosexuality is an innate “anomaly” or “benign variation” rather than a deviant psychological development. He provided some of the empirical data as well as the conceptual tools for a gay-positive study of homosexuality as an innate, minoritarian, but mainly nonpathological difference. Clinical studies conducted among Berlin homosexuals by Hirschfeld and his collaborators in the Institute for Sexual Research—whose large scientific library and data files were burned by the Nazis and thus lost to history—re-

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mained unmatched until Alfred Kinsey carried out his better-known sex research in the 1960s.5 The benign-variation thesis has had great currency inside and outside the gay movement. Overshadowed by psychiatric knowledges of psychic deviance for the several decades following the premature death in exile of Hirschfeld himself (in 1935) and of German sexology, the paradigm was reactivated in the 1980s by studies of “the gay gene” and “the gay brain” that received a great deal of positive attention in the gay community, especially among gay men. This expertise was deployed by the gaypositive litigants in the key American case Romer v. Evans through the use of gay or pro-gay scientists as expert witnesses.

“ G AY B Y N AT U R E , P RO U D B Y C H O I C E ” : Q U E E R S C I E N C E A N D T H E C O U RT S

Psychiatrist Dr. Richard Green, who, after decades of expert-witness appearances, went back to school for a law degree, has been a major purveyor of psychiatric knowledges of sex, sexual identity, and gender identity to American courts. The expertise he has deployed in numerous cases, including Romer v. Evans, is summarized in his book, Sexual Science and the Law (Green 1992); here we will discuss only the chapters “Homosexuality as a Fundamental Right” and “Homosexuals as a Suspect Class.” Following the sexual science elaborated in the 1950s and 1960s by a number of American scientists, perhaps most notably Johns Hopkins’s John Money, Green sees sexual orientation as rooted in and deriving from gender “identity.” Green is very fond of pointing out that the vast majority of boys who refuse to play male sports and love to wear dresses and play with dolls will indeed grow up to be gay, just as common sense would predict. Although he admits that parental and other adult reactions to the kids’ choices may, in turn, influence how the kids then interpret their sexual feelings, he insists that gender identity— which he identifies with North American middle-class norms—is “a bedrock human feature, permeating nearly all behavior . . . as basic a personality element as can be identified, classifying persons into one of only two primary groups” (Green 1992). Sexual orientation is almost as Some of Hirschfeld’s more conventional sexological writings, on such topics as fetishism and priapism, are available in English (Hirschfeld 1948). The studies of Berlin homosexuals’ lives that appeared in the yearbook of his institute are, however, available only in the original German or in a heavily edited French translation (Hirshfeld 1993). For the context of Hirschfeld’s work, see Lauritsen and Thorstad 1995 and LeVay 1996, chap. 1. 5

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deep as gender identity, in Green’s eyes. Therefore law should recognize that homosexuals cannot help being who they are. The mental health of gay people is negatively affected by having to remain closeted and being forced to remain silent about their deepest feelings and, even more starkly, by sodomy laws. Even this high-status scientist, interestingly, feels obliged to invoke the supporting authority of common sense when discussing how sexual science appears in law: The authority of science and the logic of common sense attest to the fundamental nature of an individual’s sexual orientation. Justice Blackmun recognized this when he called for the early reversal of Hardwick. . . .6 According to most sexual science estimates, a homosexual orientation is the predominant sexual pattern of 3 to 4 percent of the population in the United States. Overruling Hardwick would legitimize the sexual identity of six million Americans. (Green 1992, 95) Green’s legal interventions construct homosexuality—or rather, male homosexuality—as an immutable characteristic, similar to racial phenotype: “A fifteen-year study I conducted also points to the very early and essentially irreversible establishment of sexual orientation in the male” (Green 1992, 88). And he writes as if its immutability were sufficient proof of its eligibility for legal protection. This argument from science—which does not fail to appeal to the convergence of common sense and science in a way that departs from the usual scientific tendency to dismiss or reject common sense—is, of course, music to the ears of those legal actors seeking to “solidify” sexual orientation for purposes of legal protection in the United States. As discussed in the previous chapter, in American rights law, the primacy of biologically constructed race as a dimension of illegal discrimination tends to encourage scientistic immutability arguments among groups seeking to compare their situation to that of Blacks. That American lawyers find experts such as Green useful in their legal cases means that their views get much more exposure than if they were confined to scientific journals. That certain scientific views happen to be legally useful—in contrast to others, which languish in the obscurity of the lab—has a feedback-reinforcement effect on the prestige of biomedical knowledges of sexuality. In other jurisdictions the same scientific knowledges are equally influential in many circles but have far 6 Green is misleading his readers here. Blackmun’s dissent in Hardwick did not speak in the language of scientific determinism; on the contrary, following a more classically liberal argument, he spoke about “depriving individuals of the right to choose for themselves how to conduct their intimate relationships” (Bowers v. Hardwick, 214; my emphasis).

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fewer effects within law. The Human Genome Project, for example, has Canadian branch plants, but the specificity of the respective legal systems means that American gay people end up arguing much more often than Canadians that their sexual practices are biologically determined. In the Romer v. Evans case mentioned in the previous chapter, which involved a proposed amendment to the Colorado constitution making it impossible for gays and lesbians to seek rights protection at any level, including the municipal, Richard Green was one of a parade of scientists who testified for the gay-positive side. An equally renowned expert witness was Dean Hamer, whose studies of identical male twins had concluded that, although there is no one “gay gene,” there is a specific area on the X chromosome that seems to take a distinct form in the vast majority—though not in all—identical-twin gay brothers (Hamer and Copeland 1994). While Hamer’s work meets all the standards of scientific legitimacy, the state’s lawyers succeeded in cross-examining Hamer in such a way as to undermine the biological immutability argument. The court, stuck in Mendelian genetics, seemed to think that anything short of a 100 percent correlation between a single gene and a particular behavior is less than convincing: One of the hot debates among witnesses addressed the question of whether homosexuality is inborn, a product of “nature,” or a choice based on life experiences, a product of “nurture.” Plaintiffs [the gay-positive side] strongly argue that homosexuality is inborn . . . The preponderance of credible evidence suggests that there is a biological or genetic component of sexual orientation, but even Dr Dean Hamer, the witness who testified that he is 99.5% sure that there is some genetic influence in forming sexual orientation, admits that sexual orientation is not completely genetic. (Evans v. Romer [1994], District Court of Colorado, Denver County, December 14, 1993) The district court was happy to pass the thorny epistemological issue of immutability back to the scientists, concluding: “The ultimate decision on ‘nature’ vs ‘nurture’ is a decision for another forum, not this court, and the court makes no determination on this issue.” In keeping with the district court decision, the briefs subsequently presented by the gay-positive side to the appeal courts no longer mentioned biomedical evidence. Neither the oral presentations at the Supreme Court nor the major briefs prepared by both sides for the occasion mentioned Dr. Green, Dr. Hamer, or other scientists. And neither the Supreme Court of Colorado nor the U.S. Supreme Court made any scientific findings. Scientists’ “benign variation” argument, an approach

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pioneered by German sexology and reworked by U.S. scientists in the 1980s, looked promising initially, in part because it mirrors the argument about racial differences as benign biological variations that has been so important in furthering multiculturalism in the United States without challenging biologism. But it now seems that biomedical knowledges of (male) homosexuality may prove to be less important for law than activists and lawyers imagined ten years ago. Biomedical knowledges of sexuality are not only disseminated through expert-witness appearances, however. They are also publicized by science journalism and general-interest media outlets and are sometimes enthusiastically taken up by lesbians and gay men (especially the latter) as conceptual tools with which to explain “coming out” to their families and to the wider communities. In San Francisco, in the mid-1990s, many men wore T-shirts with the emblem “Xq28—Thanks for the genes, Mom!” This referred to Dean Hamer’s finding that, since the DNA region of interest in the twin gay brothers study is on the X chromosome, the biological propensity to male homosexuality must be passed on by women. Another slogan, again from the Bay area, that was popular in the late 1990s was “Gay by nature, proud by choice.” This latter slogan managed to synthesize the science of sex and the politics of gay rights in a creative instance of a hybrid knowledge. Biomedical research thus has an impact on politics and law even in the absence of any judicial ruling on biological immutability. It is worthwhile, therefore, to examine very briefly the scientific knowledge of homosexuality that, along with the “gay gene” thesis, has obtained the widest dissemination: the “gay brain” work of Simon LeVay. LeVay is an American, white, gay-male scientist who regards his sexual orientation as the deepest truth about himself and sees his scientific work as corroborating his experience. His book about the specific morphology of gay men’s brains, entitled Queer Science, opens with a quote from a poem by Gerard Manley Hopkins deployed as a hymn to identity: Each mortal thing does one thing and the same: Deals out that being indoors each one dwells; Selves—goes itself; myself it speaks and spells; Crying What I do is me: for that I came. (Le Vay 1996, v) LeVay begins by citing social science research showing that Americans who believe that homosexuality is immutable are more likely to support gay rights than those who believe it is “a choice.” Having established the political usefulness of “hard” science, he then tells the story of how Dr. Magnus Hirschfeld attempted to explain homosexuality biologically, back in the days before brain visualization technol-

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ogy, by proposing that sexual attraction to a particular sex is localized in a region of the brain. Then he describes the hormonal theories of sexual orientation popular from the 1930s to the 1960s as the background to recent genetic studies and to his own neurological research. Like Hirschfeld, LeVay passionately believes that scientific knowledge will set homosexuals free—and, like Hirschfeld, LeVay assumes that scientific knowledge of brains and neurons and hormones is a more solid basis for the facticity of sexual identity than the “soft” knowledges of social psychology and cultural studies. The Hirschfeld-LeVay thesis, influential because it converges both with existing legal knowledges of race, with commonsense notions of what makes something like sexual orientation “real,” and with existing gay-populist, first-person accounts of being born gay, was nevertheless marginalized from the legal process at an early stage of the key Romer v. Evans case. One of the lessons that can be drawn from the disappearance of scientific evidence of biologically inscribed sexual orientation from this case (and its nonappearance in contemporaneous cases from the military) is that law may be more impervious to disciplinary knowledges than Foucault predicted. Even those arguments that look like they might benefit from a strong dose of biologism—for example, the attempt to construct homosexuals as similar to African-Americans—often ignore science and medicine altogether in favor of strictly legal, political, and ethical knowledges. Those who seek to generate legally valid knowledges of sexual identity but who are neither white nor male seem more likely to eschew scientific studies of male sexual behavior and desire, and the positivistic paradigm more generally. There are no lesbian equivalents, Black or white, of the queer scientists discussed thus far. And lesbians writing about sex and the law, particularly lesbians of color, have stayed away from any biological arguments in the few published writings that exist. An article in the Harvard Law Review from a “Blacklesbian” perspective on the issue of comparing sexual orientation discrimination to race discrimination never mentions biology, either racial or sexual. It takes an explicitly “anti-essentialist” position in order to argue that one can and should construct analogies between different kinds of oppression in order to further human rights law while still respecting the differences. Sensitive to African-American fears that their legal victories might be undermined if all manner of other groups are granted suspect class status, Sharon Rush critiques the claim that only those people who cannot “pass” are truly deserving of legal protection (Rush 1997). Pointing out the phenomenological commonalities between light-skinned Blacks and gays and lesbians, she argues that everyone who suffers from oppression is entitled to legal protection regardless of his or her immediate visi-

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bility. The experience of oppression, then, is the common denominator here, not biological or quasi-biological difference. And Rush concludes by arguing that oppression affects different groups in ways that are sometimes similar without being identical, applying, in an original manner, Cass Sunstein’s validation of legal analogical reasoning (Sunstein 1993a). The knowledges deployed to make Rush’s argument—knowledges widely disseminated in movement publications and discussions—are partly experiential, partly ethical, and partly politico-legal. The focus of her discussion is the historical development of the sort of social experience that is shared by groups. Like Judge Erickson with his “nontraditional” comment, Rush moves away from the act versus identity impasse of individual sexual governance and closer to the sphere of “community” and culture—the world of consumer habits, political habits, and residential propensities that I argue constitutes the “nontraditional” sphere of sexual orientation. From a different perspective, Lauren Berlant and Elizabeth Freeman, in an influential article on queer “habits,” have pointed out that lesbians are not in a position to make the kind of claim about a solid, well-defined, biologically rooted identity deserving of citizenship that undergirds much gay-male legal and political argument (Berlant and Freeman 1994). No well-known scientist has studied lesbian brains—perhaps because the AIDS-stream funding that pays for a great deal of scientific studies of male homosexuality does not flow to either lesbian subjects or lesbian scientists. But if such studies existed, lesbians would be likely to share the general feminist distrust of “hard” science and would be unlikely to greet scientific claims with the kind of “Gay by nature, proud by choice” T-shirts described above. How gays and lesbians living in urban centers define their spaces and their habits, and use this knowledge of their own lifestyle for legal purposes, will be the focus of the last sections of this chapter; but first we must discuss the more widespread derogatory use of the term “lifestyle” to name the same phenomena. “ K U LT U R K A M P F ” : H O M O S E X U A L I T Y A S A “LIFESTYLE CHOICE”

The Romer v. Evans decision of the U.S. Supreme Court, which struck down the proposed Amendment 2 to the Colorado constitution, was widely interpreted as a liberal intervention in the “culture wars.” The Christian Science Monitor greeted the decision with a front-page article entitled “Court Boosts Gay Rights in ‘Culture War’ Ruling,” reading in part: “The decision marks perhaps the biggest high-court victory ever

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for gay rights activists. It is bound to heighten the debate over gay rights at a time when the definition of family values and other ‘culturewar’ issues are ascendant in the presidential campaign” (May 21, 1996, p. 1). Evan Gerstmann’s detailed study of the situation in Colorado at the time of the case concurs with this interpretation. The interviews he conducted, as well as the numerous public opinion polls done in the state of Colorado in the three-year life of the case, show that, although the backlash against affirmative action was probably the dominant factor explaining the fact that the voters of Colorado approved the homophobic amendment to the Colorado state constitution, “the public concern over a perceived “gay lifestyle” also played an important role in the debate” (Gerstmann 1999, 111). The Colorado Coalition for Family Values, among other actions, distributed a video entitled “The Gay Agenda” to disseminate the mythical figure of the rich, white, gay man who wants to take advantage of the legal avenues that exist for poor Blacks in order to gain “special rights” for his deviant “lifestyle.” Gerstmann’s analysis of the curious discrepancy between the frankly homophobic character of Amendment 2 and the public opinion polls— which consistently showed that most citizens of Colorado did not approve of discrimination against homosexuals—suggests that the Amendment 2 battle was not so much about the body of the homosexual (although bodies and acts were, of course, mentioned) but was primarily about two partially disembodied entities—“the gay agenda” and “the gay lifestyle” (see also Goldberg-Hiller 2000). Most Colorado citizens believed, the polls suggested, that gays ought to be free to do whatever they like in the privacy of their home and should not be fired from their jobs for that; but, Amendment 2 suggested, the same Colorado citizens also felt very uneasy about acknowledging or granting gays the right to have their lifestyle protected by the law, particularly if any state resources (e.g., those of civil rights committees) are going to be used up in the process. Some of the more homophobic pamphlets and campaign literature put out by the Amendment 2 campaign mentioned child molestation as part of the homosexual lifestyle; but, given the public opinion polls, it is unlikely that most Colorado voters gave much credence to this connection. More widespread beliefs about the gay lifestyle, as documented in the relevant studies (e.g., Bailey 1999; Blasius 2001; Gerstmann 1999; Seidman 1996; and Phelan 2001) are the following:

• that, unlike “genuine” minorities, homosexuals are not at all politically powerless but, on the contrary, have managed to deviously push the “gay agenda” through the corridors of power;

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• that homosexuals are taking over cities, gentrifying real estate, and driving out other groups;

• that homosexuals are too rich; • that homosexuals pose a particular risk to children; • that homosexuals, especially gay men, have too much influence in American cultural life;

• that there is a worldwide, cosmopolitan, rootless class of homosex-

uals that is responsible for the undermining of family values and national cultures.

The similarity between these beliefs and the anti-Semitic propaganda about Jews current in Europe and North America until 1945 is striking. In a world in which open anti-Semitism among Christians is no longer common, the old fears about the worldwide Jewish conspiracy of rootless cosmopolitans against Christian family values seem to be recast in the now more acceptable language of unease about granting gays and lesbians more than the bare minimum of “toleration.” The Jews were a biological menace for the Nazi race scientists, but to the average Christian in pre–World War II Europe, they were also, and probably most important, a psychic, economic, and cultural threat. The Jewish lifestyle—particularly the perceived threat to the financial stability and the (imagined) cultural homogeneity of Christian cities—figured more prominently in popular anti-Semitic literature than scientific facts. In the same way, the white gay men who become visible in downtown areas are imagined as rich, clever, devious, immoral, and powerful. True, there are remarkably few gay politicians and few gay Bill Gateses, the homophobic Right has to admit; but, like the Jews of old Europe, the gays of today’s North America are imagined as wielding covert influence over politicians and the economy, a covert influence contained in the much-used term “the gay agenda.” Shane Phelan, a noted queer political theorist, draws on Zygmunt Bauman’s work on “the stranger” and contemporary citizenship to theorize gays and lesbians as posing a threat precisely because, like Bauman’s Jews of Europe, they are not exactly foreigners and not exactly enemies, threatening from the margin rather than from the outside. Unlike Arabs, who are the current American paradigm of the Carl Schmitt category of “the enemy,” sexual strangers dwell among citizens, in cities particularly, but they are not fully citizens. “The enemy is the clear opposite of the citizen, but the stranger is more fraught with anxiety” (Phelan 2001, 5). The remarkable homology between classic European anti-Semitism and contemporary North American anxieties about sodomites, gay activists, and queers is nevertheless not explored either by Phelan or other queer writers on these issues (e.g., Stychin 1998). But

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the homology is apparent not only in populist descriptions of “the gay agenda” but also in the most cited phrase in the Romer v. Evans decision of the U.S. Supreme Court: the first sentence of Justice Scalia’s dissent. Criticizing his colleagues’ characterization of Amendment 2 as unconstitutional because of its obvious roots in “animus” against an identifiable group, Scalia first changes the word “animus” to the more trivial emotion of “spite” and then goes on to analyze his colleagues’ decision in the following terms: “The Court has mistaken a Kulturkampf for a fit of spite.” The peculiar choice of a German word (uttered by an Italian-American judge) to refer to the American culture wars is not justified by the record: neither this word nor any other German word appear in the lower-court decisions. The gay legal scholar William Eskridge suggests that Scalia was thinking about the Bismarck government’s attempt to assimilate German Catholics into a single culture—the original Kulturkampf, a state project that was influential in the American legal and social persecution of Mormon polygamy in the late nineteenth century (Eskridge 1999, 294–95). This interpretation is corroborated by Scalia’s mention of the rather unusual crime of polygamy, along with murder, as examples of the entities that are similar to homosexuality, in that the state is entitled to allow citizens to hate those who commit them. Nevertheless, even if the term Kulturkampf is Bismarckian rather than Nazi in origin, the word Kultur brings Joseph Goebbels to mind, for the average educated North American and especially for Jewish Americans. Through the use of this German word, with its ominous connotations, Justice Scalia’s text invokes an older precedent for the contemporary American right-wing anxiety that a monocultural ethically homogeneous nation is being endangered by overeducated men who threaten our children—men whose distinctive danger lies precisely in the fact that, unlike Arabs, they are not foreigners, and, unlike Blacks or women, they can “pass.” These smart, devious, and physically abnormal men are able to exercise influence over normal politicians and judges. Justice Scalia goes so far as to suggest that his colleagues, despite being mostly Republican appointees, are either in league with or are unwitting puppets of the homosexual “elite”: This Court has no business imposing upon all Americans the resolution favored by the elite class from which the Members of this institution are selected, pronouncing that “animosity” toward homosexuality is evil. I vigorously dissent. (Romer v. Evans, 517 U.S. at 636) Of course, judges are drawn from the elite class; but it is doubtful that any right-wing judge, including Scalia, has ever acknowledged this

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as a limitation in any other situation. The invocation of “elite” has several effects. First, in Colorado and elsewhere in the United States at the time of the Amendment 2 fight, gays were regarded as legally disadvantaged but not politically powerless. The district court stated that “no adequate showing has been made of the political vulnerability or powerlessness of gays” (p. 12), as if Bowers v. Hardwick did not constitute evidence of political vulnerability. Second, the term “elite” activates the “gay agenda” myth, functioning in Scalia’s text as the premise for the otherwise unproven conclusion that “elite” judges are “imposing” their pro-gay feelings on the honest “American” working class. Third, the unnecessary insertion of the word “Americans” has the effect of constructing homosexuals as the foreigners within—a clich´e, repeatedly reworked in cold war espionage and treason panics, that also parallels and intersects with anti-Semitic propaganda in uncanny ways. Of course, Scalia was not writing for the majority; but the majority, far from making a pro-gay intervention in the culture wars, simply set some boundaries to the hate of sexual strangers fueled by the Christian Right in Colorado and by Justice Scalia in Washington by declaring that gays and lesbians could not be explicitly named as aliens, as people unable to use the political system to try to achieve political equality. While not being completely excluded from citizenship, however, gays and lesbians remain strangers insofar as Bowers v. Hardwick is still in force and still acts to criminalize “homosexual sodomy,” namely, what judges like to call “the conduct that defines the class.” Having seen some of the legal effects exercised by the invocation of “the gay agenda” and “the gay lifestyle,” the next step is to ask: What is lifestyle? Or, to ask a more answerable question: What entities are constituted through the invocation of “lifestyle,” and how are these in turn governed, and by whom? “Lifestyle” can be a normatively positive term, as in “a healthier lifestyle.” In the context of homosexuality, however, the term “lifestyle” is almost always used negatively. “The homosexual lifestyle” is what one might call a social rather than a personal insult. You call someone a “sodomite” (a “bugger,” in Anglo-Saxon usage), and you insult what they individually do. But attacking the gay lifestyle is like invoking the figure of the “welfare queen,” an invocation that is also a lifestyle-based attack on the poor, rather than an individual insult. The homosexual lifestyle, however, is figured as privileged and decadent, as overcivilized, in marked contrast to the primitive qualities discerned in mainstream American depictions of African-American lifestyles (Gooding-Williams 1993). Current American denunciations of the gay lifestyle reinscribe the Oscar Wilde–era equation of homosexual conduct with an upper-

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class refusal of normality and fatherhood in favor of hedonism and decadence. A writer of considerable influence, Midge Decter, performs the abjection of the upper-class intellectual Other in the way just indicated, that is, by taking the “degeneration” myth in a sociopolitical rather than a biomedical direction. The “lifestyle” that is produced by groups of dandified [male] homosexuals is generated, she claims, not for their own diversion but specifically to insult heterosexuals. As cited in Blasius (2001, 146–47), Decter decries the “mocking effect on heterosexuals . . . of homosexual lifestyle, invented by the homosexuals and serving the purpose of domination by ridicule,” and implores her presumptively heterosexual and heterosexist readers to “know them as a group . . . One cannot even begin to get the truth about homosexuals without this kind of generalization” (my emphasis). If homosexuality was the object of the disciplinary gaze’s knowledge of the deep roots of individuality, the homosexual lifestyle is the perfect knowledge object for the culture wars, since it is precisely a cultural object, a set of tastes and habits shared by a particular group—what Bourdieu famously called a habitus (Bourdieu 1987a). And “knowing them as a group” presumably involves watching what they now do in public—how they gentrify their homes, claim public space, patronize certain restaurants, and influence the political agenda—rather than observing the deviant sexual acts that are unlikely to have changed much since the days when homosexuality was an individual deviance. Decter’s text provides unwitting proof of Lacanian claim that we are now “beyond sexuality” (T. Dean 2000). While some populist and judicial texts continue to fuse the homosexual urban lifestyle with the sin of sodomy, there is also a more sophisticated, more secular right-wing cultural critique (promoted by Decter and some right-wing intellectuals) that avoids both the sin paradigm and the medical discourse on homosexual identity. In this view, the homosexual lifestyle is neither a sin nor a psychiatric diagnosis: it is a hedonistic, nonreproductive, wasteful, degenerate way of life that threatens the cultural foundations of a middleor working-class America that is envisioned as sexually as well as economically thrifty in its inner essence. It is the dispositions, habits, and associations of the group, not the secret deviance of the individual, that poses an affront to normal American family life. But in an example of what Foucault called “reverse discourse,” while the right wing has built whole political campaigns (such as the Amendment 2 effort) out of denouncing the gay lifestyle, gay activists have managed to deploy the intellectual and political resources of “lifestyle” for their own purposes. Many of the same behaviors and objects rou-

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tinely cited by Midge Decter and her friends as evidence of the pernicious spread of the gay lifestyle—the geographical concentration of gays and, to a lesser extent, lesbians in “gay villages,” for example, and the development of networks of philanthropic and consumer-based establishments and activities (Murray 1979; Bailey 1999; Seidman 1996; Leap 1999)—have been redescribed under the sign of “community” and mobilized to win new group rights.7 T H E C O M M U N I T Y ’ S R I G H T T O B E P RO U D

In 1996–97 two Ontario Human Rights Commission tribunals ordered mayors of midsized cities to agree to requests from local gay activists to issue mayoral proclamations for Gay and Lesbian Pride Day (or Week). Despite the near-total absence of any legal precedent for governing mayoral proclamations—an ancient practice, rooted in the royal prerogative, that is not within the jurisdiction either of elected city councils or of courts—the tribunals decided that, since various ethnic groups and charities were able to get mayoral proclamations for the asking, refusing the gay community’s request amounted to discrimination.8 In both these cases I was the sole sociological expert witness. My main function was to present evidence that analogized the gay community to the minority ethno-cultural groups that are routinely recognized for purposes of affirming multiculturalism. The key distinction of the Pride Day cases was that the “community” was the key political and legal actor, rather than the injured individual of traditional antidiscrimination cases. The cases bore the names of individuals, but these people’s claim to fame was the intrinsically political fact that they happened to be the current chairs or coordinators of Pride Day committees or events. And the media coverage made it clear that the cases were no longer about tolerating individual gays and protecting them from being fired or losing health benefits: going far beyond the politics of injury, these cases were about seeking a positive declaration of support for visible homosexuality. The much-publicized and, to most observers, legally surprising victories of the lesbian/gay communities of small-town Ontario before On7 An influential gay intellectual, Leo Bersani, provides an eloquent critique of the new gay communitarianism, arguing that to emphasize community and citizenship is to erase the sex pervert, the individual homosexual—the Jean Genet who sought his pleasures in the secrecy and darkness of the pre-gay ghetto city (Bersani 1995). His book admits that his anticommunitarian views are bound to appear as old-fashioned, however. 8 The first case concerned the city of Hamilton; see Oliver v. Hamilton [City] (no. 2) (1995) 24 C.H.R.R. d. 1298; the second one was in London, Ontario (Hudler v. London [City] [1997] O.H.R.B.I.D. no. 23.

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tario Human Rights Commission tribunals inspired local activists in Fredericton. Fredericton is the capital of a mainly rural, nearly allwhite, heavily Catholic, but—and this is legally important—officially bilingual province in the East, located north of Maine and similar to that state in many socioeconomic respects. After repeated requests from the local Pride Day committee, Fredericton mayor Brad Woodside had been cited by the New Brunswick Human Rights Commission for discrimination on the basis of sexual orientation. The compulsory mediation, for which the Human Rights statute provides, had been undertaken without success, and, after the mayor added fuel to the fire by making inflammatory remarks to the media, the Commission opened adversarial legal proceedings against him (Hill v. Fredericton [City] Mayor, [1998] N.B.H.R.B.I.D. No.1). In the Fredericton case, counsel for the Human Rights Commission derived much of its argument from the decision of the Supreme Court of Canada in Vriend. As discussed above, this decision, which ordered the province of Alberta to “read” sexual orientation into the provincial human rights code even though the provincial government had made an explicit decision to leave this out, suggested that visible cultural differences, and specifically gay/lesbian cultural difference, should be legally protected. Like most other legal cases, the Fredericton Gay/Lesbian Pride Day involved the deployment of several different uncoordinated kinds of knowledges. Here we will briefly describe the primarily religious knowledges deployed by the mayor and the Christian groups that intervened on his side, spending more time analyzing the hybrid knowledges of human rights and of “sexual orientation” deployed by complainants, the Commission, and myself as expert witness. The Christian groups that came out in droves to support the mayor9 deployed a combination of old-fashioned sodomy talk and the “gay agenda” language of Christians-as-harassed-minorities, also deployed in Colorado around Amendment 2. One of these groups typically began by saying that they do not condone discrimination against gay people— but quickly proceeded to lament the loss of Christian hegemony, a lament deploying the American idea that “suspect class” status is a zerosum game such that if one group wins, the others are automatically devalued: No longer are we, Christians, able to express our rights in keeping practicing homosexuals out of the pulpits and Christian schools of Political fuel was added to this fire because of the contingent fact that one of the chairs of the Pride Day committee also happened to be the executive director of the local abortion clinic. 9

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our land. And today the challenge is directed against our municipal government attacking our basic rights of freedom of expression and freedom of religion. . . . The endorsement of one segment of the community must not take precedent over another and we do not want our rights infringed upon.10 This brief went down the Justice Scalia path, the path that ends in the righteous condemnation of a group regarded as a threat to the essence and honor of the nation. What valuable contribution has this segment of society contributed to the capital city of our province that they should be held in honor? To give a title of praise to an undeserving makes a sham of the honor earned by those who through commitment and sacrifice have built our nation . . . If the rights of the majority are disregarded in our land then a poet must arise in our land to apologize to our veterans for burying our democracy under the shroud of tolerance. (Ibid.) This populist rhetoric about the nation at risk from homosexuals could not, however, be reproduced and reiterated in the arguments presented on the mayor’s behalf by the city solicitor. National/religious knowledges of deviance and immorality are simply not valid currency in the Canadian legal system. The city solicitor thus argued three things: (1) that the issuing of proclamations is a totally discretionary activity; (2) that the mayor was not uttering any discriminatory statements but simply refusing to utter a pro-gay statement (an argument summarized under the phrase “the right to remain silent”); and (3) that the mayor’s action, or rather omission, did not constitute discrimination against an identifiable group but only a refusal to endorse “the lifestyle that fits the doctrine of sexual orientation.”11 Lifestyle had already been invoked in a brief submitted by the regional Baptist Convention—a brief arguing that in a pluralistic society gay people ought to have a “public and legal acceptance of their right to live freely as homosexuals,” but they could not demand from a state official “endorsation of this lifestyle.”12 The Fredericton culture war of the summer of 1998 can help us to see just how the two terms that we have identified as crucial in the new governance of sex emerging in human rights law are thought to be articChristian Coalition of New Brunswick, Letter to Prof. Brian Bruce [Board of Inquiry], June 1, 1998. 11 Bruce Noble, Fredericton city solicitor, July 10, 1998 hearing (from CBC videotape of hearing). 12 United Baptist Convention of the Atlantic Provinces, brief dated June 10, 1998. 10

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ulated with each other. The gay lifestyle is the object that is regarded as having recently emerged. In turn, “sexual orientation” is the legal doctrine that “fits,” recognizes, and, at least in the eyes of some, positively “endorses” this lifestyle. The Fredericton city solicitor, then, was not incorrect in his assessment of the link between “lifestyle” and “the doctrine of sexual orientation.” In my expert testimony I said precisely that: “Sexual orientation is not only a feature of individual psychosexual activity; it is also a major social fact, as is most easily seen in the rise of visible gay organizations.”13 If the gay lifestyle is to be known in law, then, it is clear that forensic and psychiatric knowledges will be useless, since this novel object is cultural, not psychic or bodily or in any other sense individual. Cultural and sociological expertise will thus be in demand. The economic, urban-spatial, and political dimensions of the rise of distinct gay/lesbian enclaves in North America has been documented in a number of recent works in sociology and urban studies, most thoroughly in Robert Bailey’s Gay Politics, Urban Politics: Identity and Economics in the Urban Setting (Bailey 1999), which covers about forty U.S. cities and uses massive economic, spatial, and voting data to map the features of “the gay lifestyle” that has emerged in the past twenty years or so. In the Fredericton case, little of this was mentioned. But the local group compiled a wonderfully detailed amateur study of just what their particular lesbian and gay community amounts to. Their intervenor’s brief began by reiterating the post-sexual claim typical of “sexual orientation” cases generally—“the focus of our group is not sexual behaviour.” The brief then describes the numerous activities that Fredericton Lesbians and Gays (FLAG) organizes and participates in, activities presented as the content of “sexual orientation”:

• the FLAG Gayline, a volunteer-run support, counselling, information and referral phone line;

• speakers’ bureau; sponsored presentations by local scholars, open to the whole community;

• the FLAG education committee, which disseminates information; • a library containing books, scientific papers, etc., of interest to the gay community or those engaged in research;

• a web site which provides information to tourists as well as data of use to local citizens, such as news, upcoming events, etc.

• social activities for socialisation of gays in and around Fredericton, in order to reduce isolation and strengthen the community;

• an outdoor club providing walks, hikes, and monthly socials; 13 Mariana Valverde, Examination-in-chief, Fredericton, July 10, 1998 [from CBC videotape].

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• donations to various charities, two of them AIDS related but the others of general character, such as the local food bank;

• annual Candlelight Vigil Against Violence; • participation in the local Canada Day parade.

This list is typical of what lesbian and gay organizations would provide in midsized cities around North America. Larger cities with flourishing gay villages offer much more. Community newspapers in bigger cities have listings of community groups and activities that would persuade the most ardent believer in Robert Putnam’s well-known thesis about “bowling alone” (Putnam 2000) that as far as lesbians and gays are concerned, it is the present, not the fifties and sixties, that, is the heyday of social capital. And it is precisely this social capital, which is beginning to be measured by social science (Bailey 1999), that has often been deployed in human rights sexual orientation cases to prove that the lesbian and gay community is functionally identical to the myriad ethnic and cultural groups that make urban Canadian life culturally and politically lively. This is the sociopolitical context of the “Pride Day” cases. Nevertheless, that these conflicts between the mayor and a certain social movement were taken from the strictly political arena into the legal sphere has epistemological consequences. As well as the multicultural logic of community and diversity, the legal context of these cases requires evidence that the activists in question are proceeding in a “reasonable” manner and seeking a “reasonable” goal. Looking at both the Pride Day cases and the other sexual orientation cases of recent years, it becomes clear that sociocultural facts can become evidence in an antidiscrimination case only if they are carefully incorporated into and deployed by organizations and actors who claim the space of reasonableness. In the Fredericton case as well as in the earlier Ontario ones, the local gay/lesbian community managed to claim the space of reasonableness by pointing, in a horrified manner, to the hotheaded comments of a few vocal homophobes. The FLAG brief, written from the standpoint of the victimized reasonable minority community, argued: Mr Woodside has demonstrated his lack of understanding by publically demeaning the request for a Gay Pride Weekend proclamation by comparing it to a fictitious request by the “International Association of Prostitutes.” Comments such as these incite the more radical members of the community to support the mayor in a very vocal and often extreme manner. Such a letter, stating support for the mayor, was written by professor Eugene Hill and was sent to local officials. Dr. Hill’s letter stated that “promoting the gay community through recognition is equivalent to promoting a style of death, and suffering, and torment, and terror, and grief” [my

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emphasis]. . . . To polarise a community is easy, to unite it is more time-consuming and requires careful thought, planning, and education. One of the objectives of FLAG, over our 20-year history, has been to invest in education and thus develop mutual acceptance and respect in the community. Dr. Hill was invoking the trite idea that AIDS is God’s punishment and that the gay lifestyle is one “of death.” The curious phrase “style of death,” which might have had some resonance in the early days of the AIDS epidemic, was bound to sound, in 1998, as if Dr. Hill himself were advocating death. Having situated homophobia in the “radical” fringe by associating the mayor with Dr. Hill, the gay organization was thus easily able to claim the reasonable middle. In my own expert intervention, I presented myself more as the reasonable person than as the erudite scholar. In keeping with a practice of self honed over a decade of similar interventions, I arrived in the Fredericton hearing room ready to deploy a knowledge of lesbian/gay styles of life that was more anecdotal and commonsensical than social-scientific. As I saw it, my job was not to fill the courtroom with science but to validate and restate the evidence and arguments already presented in the Human Rights Commission’s unusually thorough submissions. And the bulk of the submissions presented by the Human Rights Commission consisted of case law, interpretations of the case law, and some reiterations of what Canadian law is all about deploying not empirical scientific facts but ethical claims. The persistence, in clearly secular human rights documents, of ethical knowledges of what is just and what is reasonable has implications for our understanding of legal knowledges. Human rights legal documents contain many claims that appear to be about states of affairs but are not based on any particular evidence and are not followed by citations to empirical studies. An excellent example is the passage from Vriend (cited above) that was deployed to great effect in the Fredericton case: “If equality rights for minorities had been recognized [in the past], the all too frequent tragedies of history might have been avoided.” As a factual claim, this statement is hopeless: we do not know whose history, what type of tragedy, or what minorities we are speaking about. But as a statement of official support for the ethical norm of respect for minorities, it is excellent. And that is how it was used in Fredericton: immediately after citing this, the brief of the New Brunswick Human Rights Commission goes on to say, “It is submitted that Mayor Woodside’s refusal to proclaim Gay Pride Weekend sends a message to the public that homosexual persons are less deserving and unworthy of equal protection and benefit under the law.” Thus the evidence presented by the pro-gay side in this case consisted

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of a modicum of sociological expertise, a great deal of law, and some ethical-political claims—all generated from the space of reasonableness. Compared to this, the mayor and his Christian right-wing supporters could not help but look as if they were lacking in the knowledge department, and not only because they had no counter-experts. The successful construction of the mayor as “ignorant,” in every sense of that powerful word, was reiterated by the events that followed. The adjudicator chose to follow the Ontario precedents and ordered the mayor to issue the proclamation. Loudly complaining about having been forced to speak, the mayor was thus forced to mount the podium, under intense media scrutiny, and to utter the disputed words proclaiming Gay Pride Weekend—but he turned off the microphone before doing so. The Gay Pride cases I describe here are legally rather insignificant. Human Rights tribunals may get media attention depending on local conditions, but they have little precedent value. They do, however, raise a number of key issues that are simultaneously political and epistemological. What can we learn from analyzing, with the benefit of legal hindsight, the Colorado gay-positive litigants’ decision to introduce “hard science” evidence of the immutability of male homosexuality? How do ethical knowledges of injustice and discrimination get constituted in settings, such as courts and tribunals, in which norms are usually thought to come from law or the constitution, not from the bottom up? Who can claim the “reasonable person” position in human rights law, and with what authority? What happens when a classic form of deviance manages to reconstruct itself as a valid minority community? Who are the authorized knowers of communities and their lifestyles? These are the questions that the preceding accounts have sought to address, questions that are important not only for human rights law itself but, more generally, for our understanding of how knowledges are deployed in struggles around citizenship. Knowledge, however, is more than a legal and political resource or form of capital. In the Gay Pride cases, the knowledge of discrimination against gays and lesbians introduced by the Human Rights Commission lawyers and the cultural knowledge of gay communities introduced by sociological expertise both worked as resources to wage a successful legal battle. But in the “common knowledge” cases that are examined in chapters 7 and 8, in which various citizens and private employees are held accountable for knowing and managing not only facts but even future risks, we shall see that knowledge can function more as a duty than as a resource. At this juncture, it is therefore worth asking a different question, namely: Who has the duty to know “sexual orientation”? In virtually all the cases examined it was taken for granted by all concerned that it was the parties claiming discrimination who needed to

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gather and accumulate evidence not only about the particular injustice but about the wider social context, the community, and so forth. This is an extremely time-consuming and resource-consuming process. While lesbian and gay communities often include a good number of highly educated people, such as sociologists, lawyers, and scientists, other marginalized communities may experience the burden of knowledge requirement as prohibitive. Transmuting social capital into legal capital, as happened in the Pride Day cases, requires a great deal of volunteer time, legal resources, and insider knowledge of how government and media work. To question the taken-for-granted assumption that the burden of knowledge rests with those who have no state resources and may or may not have private resources for gathering knowledge and making it count, it is worth citing a text that raises the possibility that it is governments that have the duty and the resources to inform themselves about communities. The text is the intervenor brief submitted by the gay/lesbian Canadian legal group EGALE in the 1995 spousal-benefits Egan case (Egan v. Canada [1995] 2 S.C.R. 513). The Respondent [the government] states that, in contrast to the “well known traditional structure of heterosexual relationships,” “little is known [i.e., by the Respondent] about the patterns of gay and lesbian relationships.” The Respondent concedes that part of the reason why it knows little about the patterns of lesbian and gay relationships is “because of the historical disadvantage which has socially marginalized them.” It is respectfully submitted that another part of the reason for this lack of information is that the government is generally disinterested in the welfare of lesbian and gay relationships and therefore has not taken the necessary measures to inform itself about them. The government therefore had little or no information on which to base its conclusion that the rights of lesbians and gay men were minimally impaired [by the impugned provision]. In the absence of such information, there could be no “reasonable basis” for that conclusion. (para. 50 of Brief; internal citations omitted) When information about something of relevance to human rights law— the status of gays and lesbians, in this instance—is not common knowledge, why should the state not have a duty to provide the resources with which to constitute the body of knowledge necessary for adjudication? Good question. C O N C L U S I O N : C O M M U N I T Y, L I F E S T Y L E , “ E T H O S ”

Those who fight for sexual orientation protection usually invoke “the community”—or, in very recent years, Lesbian-Gay-Bisexual-Transgen-

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dered (LGBT) communities. Those who struggle over the inclusion of bisexuals and transsexuals under the rainbow banner, however, rarely pause to examine the common denominator term “community” except to pluralize it. The term “community” seems to be popular precisely to the extent that it is amorphous, as a number of socio-legal scholars have pointed out (Cotterell 1995; Crawford 1997). But the rhetorical and social effects of various maneuvers carried out in the shadow, or in anticipation, of law, while having real power in the world, may not emanate from any “real” object. Many things can be successfully governed in the name of community—nostalgia for the suburb of the fifties as much as queer hopes for a more diverse urban environment (Rose 1999, chap. 5). But as William James said about the many uses of the terms “God” and “religion,” just because an invisible entity can be mobilized by many different interests to effect real changes in the world does not mean that it exists. “Lifestyle,” a more open-ended term, is nevertheless handicapped by its nearly terminal appropriation by the right-wing side in the culture wars. It is also deeply marked by the deployment of “lifestyle” by the forces of consumer capitalism. A “style of life” can be a worthy ethical project; but a lifestyle, when it is not a decadent perversion, is often a niche market, a way of shopping. And no queer activist can deny that there is plenty of evidence that whatever the biochemical and physiological “truth” about homosexuals, the way of life of North American, white, middle-class gay men is, among other things, characterized by a way of consuming—not just through shopping for the perfect interior decor but, more important, through artfully and deliberately consuming desires themselves. Edmund White’s States of Desire: Travels in Gay America (1980) documents a world that existed before AIDS and before “sexual orientation”—the world of the men referred to by other men of their class as “pederasts.” The overt pursuit of immediate pleasure, clever conversation, and conventional beauty in elite gay male private parties and friendship networks of the 1970s may now seem, after AIDS, like a collective youthful folly to be abjured; but those relations and practices lay the social groundwork for the building of the contemporary “gay village.” It may be that certain styles of life will be the main legacy that the gay networks of the late twentieth century leave to the next generation. Some of these styles of life are cultural inventions of ambiguous or dubious political or ethical significance (disco; body building.) But “style of life” covers more than consumer activity. It also encompasses those practices, whether commodified or not, that provide gay men (and, to a lesser extent, lesbians) with opportunities for experimenting with rela-

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tions of self to self and self to others that include an erotic dimension but are wider than “sex.” In an interview with the Toronto gay news magazine The Body Politic, Foucault mused that what was truly threatening to “family values” and mainstream Western culture was not so much sex between men, or between women, but the commitment that gay men have to friendship, support, and love for, and with, other men (in Foucault 1994). This comment was, of course, speculative; but one need not unequivocally sing the praises of middle-class, white-dominated, gay-male urban culture in order to appreciate that there is more to it than another commercial opportunity or niche market. Mark Blasius puts this very well when he turns to the Foucaultian language of “ethos” to reflect on the ethical significance of the gay networks that have arisen in the past twenty years or so, networks that, unlike the private house parties of the pre-gay movement era, have a political significance for the city as a whole. Gay and lesbian commercial establishments, social institutions, neighbourhoods, resorts, and cruising areas as well as cultural “spaces” or events, music festivals, lesbian and gay literature, athletic leagues, conferences, and informational and friendship networks such as those spawned through AIDS activism all constitute a “liberated zone” where lesbians and gay men can feel at home in and at peace with the world. . . . Lesbians and gay men virtually invent a way of life through which they create and re-create the self continually within sexual affectional relationships . . . and the way of life that they contribute to creating. (Blasius 2001, 147, 149) The lifestyle that fits the doctrine of sexual orientation is, of course, not a single lifestyle, and the lifestyles developing in gay and lesbian communities in urban centers around the world are by no means ethically or politically coherent projects. Nevertheless, inventiveness in ethics and in politics is not monopolized by philosophers or artists. In building networks and communities that are, at least in some cases, obtaining legal and other forms of state validation, the group practices and habits of “out” lesbians and gays are significantly changing not only the way we think of love but also the way we think of urban spaces and urban politics. The largely symbolic battles about inclusion in nondiscrimination ordinances and about mayoral proclamations are having more than symbolic effects—and one of these effects may be, paradoxically, something like the “breakup of sex.” We are not “beyond sexuality” yet. But if and when feeling erotic attraction to people of the same sex is no longer associated with years of agonizing soul-searching, we may then be able to go beyond sex as the inner truth. This is hinted at in Edmund White’s already cited influ-

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ential account of pre-AIDS, affluent, white-American “gay communities,” States of Desire. Citing, or rather evoking, the Paul Valery line “le plus profound, c’est la peau” invoked in the introduction, White describes a conversation he had with a California proponent of deep knowledges of the self. The Californian sings the praises of looking deep into one’s soul but does not persuade White: “Oh?” I remarked, searching for something to say, “I’ve always felt the deepest thing is the surface—didn’t Oscar Wilde say that in a witty way? Once when I was tripping I saw the most personal thing about me was my mannerisms, my ways of doing things.” (White 1980, 36)

CHAPTER SIX

Police Science, British Style: Pub Licensing and Knowledges of Urban Disorder ✦ In discussing Foucault’s account of the emergence of liberal governance and liberal governmentality in the late eighteenth century, Colin Gordon writes: Liberalism discards the police conception of order as a visible grid of communication; it affirms instead the necessarily opaque, dense autonomous character of the processes of population. It remains, at the same time, preoccupied with the vulnerability of these same processes, with the need to enframe them in “mechanisms of security.” (1991, 21) The ultimate goal of the Polizeiwissenschaft, or police science, that developed in European cities well before the rise of public police forces (Knemeyer 1980; Neocleous 1998, 2000; Pasquino 1991; Small 1909) was the dream of a totally transparent, highly ordered urban space in which civility and prosperity would emanate from the built environment as naturally as possible. Working toward such a utopia involved not only prohibiting a whole range of activities, from vagrancy to public drunkenness, but also positively encouraging and even demanding particular modes of conduct from the citizenry. For example, sumptuary laws, a key part of early Renaissance experiments in urban police regulations, did not only prohibit peasants from wearing purple and so forth (Hunt 1996); they also demanded that citizens daily reproduce the semiotic codes that would allow strangers to read one another’s appearance clearly and without ambiguity. In this way, the apparently private decision about what to wear in the morning would become aligned with the governmental aim of creating “a visible grid of communication,” that is, the material basis for the development and maintenance of that elusive condition—associated in the United States with civic republican citizenship—often called “the well-regulated society.” The myths that liberalism has about itself and about its own history have prevented scholars from exploring and understanding the importance that this ideal has had over the whole of the past two centuries, as

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Bill Novak has pointed out in the case of U.S. legal history. Novak’s framing of his own detailed history of the police powers of nineteenthcentury American municipalities and states is worth quoting, since this chapter pursues Novak’s question but in the British context. Almost erased from American history because of its lack of fit with liberal mythology, the well-regulated society is often misconstrued as a lagging mercantilist stage of development or as the lesser half of an ever present tension within liberalism between individualist and communitarian renderings of freedom. In contrast, this book posits well-regulated governance as a separate and independent set of governmental aspirations and practices. The well-regulated society is a regime of governmental conduct with its own distinctive structure, rationality, and social impact. (Novak 1996, 9) Novak’s exhaustive history of the draconian regulatory powers exercised by municipalities, usually with the approval of state courts, through such legal tools as nuisance abatement and expropriation—even during the supposed heyday of laissez-faire that was nineteenth-century America—reveals that the current interest shown by communitarians in reviving the police powers necessary to achieve “the well-regulated society” (e.g., Ellickson 1996; Livingston 1997) is more of a return to mainstream tradition than its advocates would admit. It is, of course, true that the 1960s and 1970s saw U.S. federal courts striking down municipal bylaws governing the use of urban space by panhandlers, alcoholics, and other “undesirables” and that the 1980s and 1990s then witnessed a backlash against these rights-oriented decisions, and a new public visibility and public acceptance of regulations demanding that spaces and persons conform not only to law but to community norms. But although the discourse among judges and in law reviews, as well as in newspapers, has certainly changed dramatically over the last few decades,1 there is reason to think that, at the level of practice, neither municipal police forces nor officials and inspectors of every type have ever relinquished their formal and informal powers to shape urban conduct over the longue dure´e of the project to create a civilized commu1 Robert Ellickson, professor of property and urban law at Yale, has produced a tremendously detailed and articulate justification for using traditional municipal police powers to abate or spatially manage what he calls “chronic nuisances in public spaces,” among which panhandling takes pride of place. Like his communitarian allies, Ellickson seems ignorant of the long history of U.S. police powers: instead of emphasizing the continuities of municipal efforts to clean up and civilize the city, he contrasts instead his own order-seeking project with the (caricatured) liberal rights discourse of 1970s federal courts (Ellickson 1996, 1165).

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nity by building a clean and orderly city, a project, I argue, that is not external to common-law liberal legal regimes. This does not mean that police powers and, more generally, the “police governmentality” (Foucault 1991; Pasquino 1991) favored by public administration experts and urban reformers have gone unchallenged. In the United Kingdom liberal thinkers such as Adam Smith gained their renown by insisting that economic and social processes, were to some extent, self-governing and thus “opaque” to government eyes, and to that extent—and only to that extent—they broke with the police logic. After Smith, and with the spread of free-trade ideas, police science and police powers acquired a bad reputation in Britain, particularly in England. Police powers exercised by municipalities in both absolutist and liberal regimes, and in secular as well as confessional states, were not distinguished, in much of the subsequent literature on government, from the special techniques of absolutist states. Through this slippage, techniques of governance used to civilize and order urban space, as well as the literature that elaborated this kind of knowledge into the intellectual edifice of Polizeiwissenschaft, tended to be regarded in the United Kingdom as illiberal features of absolutist states that had no place in the land of freeborn Britons (Garland 2001, 32). And yet neither Adam Smith nor his successors have denied that all states and all municipalities, however liberal, need to be concerned not only with providing and guaranteeing security (both in the narrow sense of physical safety and in the broader sense of population health) but also with providing numerous administrative and legal tools to ensure the provision of public goods: standardized weights and measures (Ewald 1990), a reliable currency, a transportation system free from piracy and brigandage, an adequate postal system, clean water and sewers, street lighting, fire brigades, measures to contain epidemics, and so on. At those times in history when the discourse of laissez-faire and individual rights has been most dominant, the regulations governing the disposal of garbage, the production and sale of food and drink, the sale of “risky” substances from gunpowder to secondhand clothes, and the movement of pedestrians and vehicles on sidewalks and streets have not been suddenly abolished. And neither have the discretionary powers that police forces and municipal officials have had to control informally the sort of people that Victorians called “the dangerous classes” and Robert Ellickson calls “the denizens of Skid Row” (Ellickson 1996, 1237). Although sometimes invisible at the level of public opinion and official discourse, then, the practices that make up the police powers of states and municipalities have persisted for a very long time and have been used not only by absolutist regimes but also by liberal regimes engaged in governing liberally. Examining the genealogies of British po-

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lice powers—and of the knowledges used in the deployment of these powers—is thus an important contribution not only to legal history but to the theorization of liberal governance. The key dilemma of liberal governance, as the quote from Colin Gordon reminds us, lies in the attempt to reconcile liberalism’s reluctance to govern too much and too directly with the array of governmental needs, such as security, public health, transportation, and communication, that are constant across modern political regimes. The key theoretical contribution made in this chapter lies in demonstrating that common-law jurisdictions have relied for a very long time on the legal technology of the license to manage this perpetual dilemma of liberal governance. Put differently: the legal technology of the license allows governments to ensure that certain spaces, activities, and people are under constant surveillance and are subject to immediate disciplinary measures but without state officials (or centralized state knowledges) being involved in this micromanagement of those dimensions of everyday urban life that are regarded as problematic. Licensing is nevertheless not hard-wired to police-type projects to promote “the well-regulated society” and the civic republican urban space. Like many other politico-legal inventions, it is a flexible technique. For example, television licenses in the United Kingdom fund public broadcasting, thus achieving a fiscal objective without creating the regulatory conditions that are attached to many other types of license. How and when one watches television is left completely to the consumer, and there is no limit on the number of televisions that can be licensed. A license of this type is merely a revenue-raising tool. Licenses can also be used to ration access to scarce resources on a bureaucratic, impersonal basis. In this type of licensing, found, among other sites, in fishing and hunting permits, temporal controls may be involved (e.g., the season may be severely limited). This is similar to the regulation of the time of consumption involved in establishing opening and closing hours for pubs, but no private-sector employees are forced to engage in the surveillance of the process. In another important arena, professional licenses act to create self-governing bodies that are allowed legally to monopolize a particular knowledge, with often draconian internal selfregulation being the condition of eligibility for state licensing. In one of the few relevant legal studies of licensing, Charles Reich has called this use of licensing “the new feudalism” in that it revives the medieval guild by other means (Reich 1964). This argument reminds us of the ancient historical roots of many techniques still in use today, although, unlike Reich, I would stress the ways in which redeploying old techniques implies new governance effects. Even within the single field of liquor and pub licensing, we shall see, in the historical sketch provided in the following section, that although

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public order has been the chief rationale of British pub licensing both historically and in the present, nevertheless other governmental projects have also successfully mobilized licensing of pubs as a tool through which to promote their project. In general, it is important to stress that particular legal technologies are seldom hard-wired to particular governmental projects. Changes in licensing law that expelled women with children from pubs in early-twentieth-century Britain, for example, were thought of as promoting morality and motherhood and thus national and imperial order (Gutzke 1989); but making the pub into an all-male space would not be regarded today as an effective way to promote public order. And we shall see that a number of other broad projects of governance have deployed pub licensing to promote aims other than urban orderliness. Nevertheless, the production and maintenance of public order emerges as the chief aim of, and chief justification for, licensing in British history as a whole, and perhaps most especially in the present. That problematic consumption is better regulated through licensing than through direct governmental control measures (such as the spies who haunted French working-class caf´es in the ancien regime) is an assumption so thoroughly naturalized in contemporary regulatory practice as to be completely invisible. None of the numerous position papers and opinions generated prior to, and in the production of, the major overhaul of licensing proposed by the British Home Office in a lengthy white paper mentioned the possibility of abolishing licensing in favor of more direct state control. This speaks to the naturalization—and hence mythologization, to follow Barthes (1972)—of techniques of legal governance, particularly low-level administrative techniques that, unlike constitutional and criminal law, are seldom critically examined. Another key assumption shared by the groups producing position papers and by the media was that the consumption of alcoholic beverages necessarily involves major risks to public order. Anthropological studies show that, in other cultures, alcohol is not associated with violence or with accidents; and, of course, women drinkers behave differently than men (e.g., Douglas 1987; Marshall 1979; Mass Observation 1943; Murdock 1998). And yet no authority has ever proposed resocializing British or other Protestant-culture males to train them to experience drinking differently.2 The culturally specific conduct of British males drinking alcohol in the evening in public establishments is taken as an 2 Scandinavian state liquor monopolies have tried to replace the traditional binge drinking of spirits characteristic of Saturday nights in northern countries by drinking wine with meals, but no such resocializing efforts have been made in English-speaking countries. Perhaps more important from the point of view of harm reduction is Joseph Gusfield’s observation that no American municipality or state has ever considered trying to decrease the incidence of drunk driving by taking measures to reduce driving (Gusfield 1996).

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unchangeable given and as evidence of the universal effects of alcohol as such. The Home Office white paper presents no evidence at all before stating that “alcohol and crime have always been linked; and public order issues have always arisen whenever large groups of people gather together, particularly at night, to enjoy popular pastimes” (Home Office 2000, 5). So, too, the Licensing Law Reform Panel, which foreshadowed many of the Home Office’s proposals, stated: “The Panel concluded that the maintenance of public order in general and the protection from harm of the young and vulnerable . . . are the central reasons for liquor licensing.”3 And the Magistrates Association, which predictably opposed having its ancestral licensing powers taken away, did so precisely by supporting both the public-order rationale for licensing and the unspoken assumption that licensing is the only way to regulate pubs but then proceeding to lay claim to the position of guardians of order, which, in their text as in others, is completely identified with “licensing authority.” The magistrates argued that municipalities are the proper guardians of the risks of other forms of consumption (dancing, restaurants, etc.) but that alcohol is intrinsically more disruptive of law and order than anything else and hence requires magistrates. In a statement remarkable for conveniently forgetting criminogenic retail products like drugs, poisons, and guns, the magistrates write: The sale of alcohol is unlike that of any other retail product. It is a substance than when misused or abused can be closely associated with criminal activity, particularly public disorder and violent offences which we see only too often in the courts. (Magistrates Association 2000)4 The risks that beer consumption (“particularly at night”) poses to public order are thus presented as if they were natural risks rather than culturally produced ones. The risks to public order that characterize particular ways of drinking by particular groups of people are attributed to the substance alcohol itself; at the same time, licensing is taken for granted as the way to manage these risks. The only issues debated are who will do the licensing and how the conditions will be enforced. When used in this manner, that is, as a technology to promote order 3 Report at the website of the Brewers and Licensed Retailers Association (http://www. beerandpub.com [May 1, 2001], which, in the fall of 2000, held other documents used to research this chapter). Other websites used were those of the Home Office (http://www. homeoffice.gov.uk [Aug. 28, 2002]); the Alcohol and Entertainment Licensing Branch of the Department of Media, Culture, and Sports (http://www.culture.gov.uk); and, last but not least, the Parliamentary Beer Club (whose pro-drinking website, last accessed May 1, 2001, was sponsored by the traditional ale Old Speckled Hen). 4 Ms. Anne Norton, spokesperson for the Magistrates Association, provided a copy of this document and explained the magistrates’ position in an interview in London in November 2000.

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and to civilize urban life, the licensing of public drinking establishments—like the licensing of other problem spaces, such as dance halls or “adult” bookstores—works by contracting out the governmental work of preventing disorder and monitoring risks to the private sector. This is done not through contracting out the state’s police powers to a private security force but by the far cheaper mechanism of requiring that the very people who make their living selling risky substances and pleasures take responsibility for monitoring and managing the risks associated with their business. The very people who have an economic interest in getting people to drink, and to drink more, are thus charged with the task of limiting drinking. This involves demanding that large numbers of largely unskilled, nonexpert personnel (bartenders and wait staff) acquire a fine-tuned knowledge of drunkenness and its risks, and proceed to apply this correctly in the case of each individual patron. Unlike in North America, where most jurisdictions have long imposed this onerous responsibility on everyone who serves alcoholic beverages, however inexperienced, and even on private hosts, in Britain the responsibility to know and to monitor drunkenness and its risks had traditionally fallen only on the licensee. As of 2001, however, all bar staff have been given “the responsibility to prevent disorder and drunkenness on licensed premises.”5 Exactly how pub staff come to know the risks of drinking (and how courts and licensing boards have authorized and/or demanded certain kinds of knowledge of drink and risk) will be the subject of the second half of this chapter and will be explored further in chapter 7. First, however, we have to begin here by denaturalizing the connection between licensing and order that forms the keystone of today’s governance schemes. This will be done through a quick sketch of major rationalities (Rose and Miller 1992) that, in Britain, have been linked to, and promoted by, pub licensing over the past couple of centuries. This sketch, not amounting to a full genealogy, demonstrates the contingent, culturally, and legally specific character of the link between good licensing systems and order that is now and has often in the past been assumed and reproduced through the work of licensing and reforming licensing. VA R I E T I E S O F G O V E R N M E N TA L E X P E R I E N C E I N T H E H I S T O RY O F L I C E N S I N G

If contemporary neoliberalism agrees with classic liberalism that the socioeconomic world is more opaque than the proponents of the civilizing projects of the late eighteenth century had thought, this opacity is nevertheless not regarded by the authorities as an absolute obstacle to gov5

Section 32 of the DCMS Licensing Circular no. 02/2001.

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ernance. The production and the guaranteeing of order—both in public outdoor spaces and within spaces such as bars and pubs—can still be achieved even in the absence of the kind of state spies advocated by German and French police-science thinkers. If maintaining order, monitoring risks, and preventing disorder are made into conditions of a license, then the licensee will become a more efficient producer of order than any state official (as the law and economics literature would predict). And, at the same time, caf´e and pub patrons will not have their liberal sensibilities offended by the presence of state officials. Instead of being directly named and disciplined by state officials, patrons will receive words of advice from people whom they often know personally and who have as much of an interest in pleasing the clientele as in producing order, and thus who are likely to couch disciplinary advice (such as, “You don’t need one for the road”) in kindly, avuncular language.6 In this way liberal governance at a distance (Rose 1999) is reconciled with the governmental need constantly to ensure and reproduce security and order. A key feature of the pub license, as of most other licenses, is that it focuses not on individual deviants but on particular spaces, temporalities, and activities: it is concerned with individuals only insofar as they engage in those activities or occupy a place in those particular chronotopes.7 Therefore, although it is inextricably linked to sovereignty through law and to discipline through the mostly informal normalization involved in governing “excessive” drinking, licensing is somewhat removed or detached from both these well-known apparatuses of regulation. This has meant that the powers the license gives to the private sector both to prohibit and demand various behaviors go unremarked—or, when noticed, they are not felt to be a Hobbesian loss of liberty but simply a sensible (or not so sensible) way of managing risks. Hence civil liberties groups and radical lawyers who focus their energies on the wrongful criminalization of unpopular people and on the loss of traditional liberal rights rarely get involved in monitoring or attempting to limit the coercive effects of licensing mechanisms. The licensing mechanism—studied here in relation to pub licensing in the United Kingdom, but which could be studied along similar lines in numerous other contexts, mainly within municipal law—is thus a key For an excellent ethnography of the monitoring of drunkenness in relation to driving by bar staff, see Gusfield 1996, 101–70. 7 Following Bakhtin, I use the term “chronotope” to designate spatially and temporally specific units of governance, such as “the pub,” which is defined as both a space and a time in which it is permissible to engage in an activity (selling beer) that would be illegal in another space (a park) or another time (after last call). For more on chronotopes and governance, see Moore and Valverde 2000. 6

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and yet hitherto unrecognized brilliant invention in the history of the governance of order and disorder. Analyzing it in this and other contexts could help us to begin to think about governance in terms that go beyond the tired liberal oppositions of security versus freedom, order versus rights, that haunt current civil liberties circles as much as communitarian discourse. Individual drinkers are, after all, not targeted by name or arrested, and so they are not losing their individual constitutional rights if their favorite pub is closed for licensing infractions. They are neither charged with a crime nor all forced to drink in the same, correct manner. They are simply forced to move elsewhere. As a “time, place, and manner” regulation (similar to the zoning powers discussed in chapter 2), regarded in law as qualitatively different from a criminal sanction, forcing drinkers to leave their favorite local pub for another establishment falls within the traditional and largely uncontested exercise of governmental police powers. Individual freedom versus public security—the perpetual bad dialectic of due-process analysis—is thus not a good framework for understanding this legal tool. A framework that does not see governance in the liberal manner—that is, as always intruding on some imagined primary freedom—is needed. Elements toward such an analysis are available in the literature on law as constitutive of social relations and in the governmentality literature. Let us then take up the story of British pub licensing, starting in the present. In April 2000 British Home Secretary Jack Straw issued a white paper proposing a complete overhaul of liquor-licensing practices. This included the following drastic measures: removing the magistrates, who have monopolized liquor licensing for more than four hundred years, from the frontlines of licensing; abolishing the uniform pub closing hour of 11:00 p.m. in favor of flexible closing hours that might result in twenty-four-hour public drinking; and giving police forces much greater powers to close unruly pubs and otherwise regulate drinking environments. The most innovative of these proposals—the transfer of licensing powers from the magistrates to municipalities—was not implemented during Straw’s term as Home Secretary. Similarly, the Europeanizing economic liberalism embodied in the proposed abolition of the ancient British cultural institution of closing time—the only part of the white paper publicized in press coverage the day after the paper was released—was also put on hold. By contrast, through a variety of unpublicized changes to regulations, police forces were given new powers to monitor and control licensed premises, for which the white paper had argued at length. These included the power immediately to close an establishment selling alcohol without a valid license, a much stronger tool than the power police previously had had merely to confiscate illegal alcohol, and the power to engage minors to test publicans’ fulfill-

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ment of their new responsibilities positively to ensure that all drinkers are of legal age.8 Jack Straw’s white paper represents an important moment in the Third-Way, New Labour project to bring civility to urban space through innovative redeployments of police powers, and thus deserves closer study even if only a few of its provisions are turned into legislation.9 Despite the central cultural importance of the pub in British popular culture, neither the white paper nor the subsequent regulations have received scholarly attention. Criminologists have analyzed the major New Labour criminal-law, public-order initiative, the Crime and Disorder Act (e.g., Crawford 1997, 1998), but the regulation of disorder through administrative and municipal law has been neglected. Because this neglect characterizes historical scholarship as well—there is a vast literature on the history of criminal justice, whereas administrative legal technologies languish in relative obscurity—it is necessary here to sketch out the major shifts in the governance of urban disorder that are visible in the history of pub licensing in the United Kingdom, before examining, in more detail, the question of knowledge. Magistrates have had the power to grant and withhold public-house licenses since the fifteenth century. Publicans were thus subject to the personal or political whims of the local gentlemen who acted as justices of the peace. They were also subject to the requirements imposed on them by innkeepers’ law, whose main concern was to ensure that travelers would be served and housed at inns, such that innkeepers were compelled to accept all comers and even to serve beer outside regular opening hours (Burn 1793 [1754]; Skyrme 1994).10 Magistrates exercised personal surveillance over the premises that they had licensed, either individually or in the group meetings known as “Brewster Sessions.” The relations of deference and personal surveillance that obtained in the countryside and in small towns, and that provided the social context of licensing decisions and enforcement, were severely shaken, not surprisingly, by the changes associated with the Industrial Revolution. At the end of the eighteenth century, pub licensing gained a new visibility as aristocrats and moral reformers became concerned in new ways with the morals and customs, and leisure activities, of the 8 See DCMS Licensing circular no. 02/2001 and its addendum. The provision that imposes a duty on publicans to check age is an innovation in British law, although it has been a feature of North American bar regulation for a long time. 9 I use “New Labour” more to denote a time and a mentality than to name a party. 10 Innkeepers’ or publicans’ law was a notorious jumble of onerous regulations. Bentham’s incomplete effort to codify English law began, interestingly for our purposes, with a codification of publicans’ law (and also of turnpike law, another morass of police regulations). See Lieberman 1989.

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emerging working class. Although, of course, many of these reformers were not loath to intervene directly in the souls of the working class through evangelical efforts and other disciplinary tools, they also used more indirect techniques to achieve civility, such as tightening the conditions of pub licenses. In Edwin Chadwick’s concise formulation of the project to produce order by governing not persons but opportunities and circumstances: “Circumstances that are governable govern the habits of the population, and in some instances appear almost to breed the species of the population” (Chadwick, quoted in Poovey 1995, 129). The Webbs’ still unsurpassed account of the history of pub licensing as an important dimension of municipal and state governmentalities tells us that the move toward making the license into a tool for generating and preserving order came not from the central government but from magistrates themselves. A number of new techniques were invented, usually in an ad hoc and local manner, and unevenly implemented. One technique developed by Wiltshire magistrates was making “the owners of public-houses, be themselves securities for the good conduct of their patrons” (Webb and Webb 1963, 63): this was to get around the new problem of the lack of power justices of the peace had over publicans who merely rented a space and bought their beer from the new national brewers. Some justices of the peace also began to insist on new conditions for the license, such as closing the pubs on Sundays or making publicans responsible for any damage caused by drunkenness emanating from their premises. These remained local and largely discretionary conditions, but some central state concern was shown through a new statute demanding that persons seeking a license had to prove that they were of “good fame, sober life and conversation,” a requirement that persisted into our own time.11 In this wave of licensing reform, the magistrate whom the Webbs recognize as the foremost leader was Patrick Colquhoun, who is often cited as the author of important works on early police forces but has not been recognized (other than by the Webbs) for his efforts to use licensing to create well-regulated, transparent urban spaces: When additional stipendiary magistrates [that is, paid justices of the peace, as distinguished from upper-class volunteers] were appointed in 1792, they seem at first to have attended the licensing sessions, and to have brought to notice “the ill-regulated public houses conducted by men of loose conduct and depraved morals.” But “perceiving the inutility of these efforts” with the little coterie 11 First Report of the Committee on the State of the Police in the Metropolis (House of Commons. 1817. Parliamentary Papers. Vol. 7, 7).

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of Justices who had assumed all the licensing duties, they ceased attendance at the Brewster sessions. The ablest and strongest of the new stipendiaries, the celebrated Dr. Patrick Colquhoun, did, indeed, work a temporary reformation in the Tower Hamlets [a rough East London area with many sailors’ pubs]. In 1792, among a total of 1,100 public houses in the division, he managed to get suppressed 87 of the worst gin shops. But any such suppression was quite exceptional. (Webb and Webb 1963, 83) The burst of regulatory zeal connected to the English movements for the suppression of vice and reformation of manners and to the emergence across all Europe of civic reform died down in the early nineteenth century, much to the Webbs’ dismay. Gin selling was targeted by various authorities, including justices of the peace, as part of the general moral panic about the working classes abandoning the ancient English custom of drinking ale (which was considered a traditional “victual”) for the new and risky habit of gin consumption; but alehouses not selling gin, or not selling it officially, went largely unregulated. However limited the regulatory powers exercised through licensing by magistrates, what is important for our purposes is to note that public order—not the health risks of habitual drunkenness—was the primary criterion of, and justification for, the broad discretion exercised by justices of the peace in this area. This was clearly stated by one of the few official bodies that examined licensing in the days before the temperance movement, the Committee on the State of the Police of the Metropolis, which devoted as much attention to licensing as to criminal justice issues. The First Report of this important parliamentary committee stated: In departing from the ordinary rules of commercial freedom, and in subjecting individuals to be restricted in the manner their property shall be employed for their own particular profit and advantage, the Legislature clearly had in view two points: first, the advance and security of the Revenue against the unlicensed vend of excisable liquors; secondly, the conservation of the public peace and morals. (Parliamentary Papers. 1817. Vol. 7, 7)12 The anxiety to justify the interference with property rights involved in licensing expressed in this statement presages how free-trade rationalities would result, in 1830, in the temporary abolition of the magis12 This committee’s second report, on the organization of crime-oriented policing, is well known to historians of criminal justice, but that, for this Committee, questions about policing in the modern sense were closely linked to licensing—the subject of the first, neglected report—is not mentioned in the literature.

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trates’ power over alehouses. From 1830 until 1870, magistrates were limited to controlling establishments selling liquor: thus, unless they could persuade publicans to sell liquor as well as beer, they had little control over pubs. The Webbs decried these decades of unregulated alehouses with their characteristic puritanism; even today some writers look back on this era as a heyday of popular vice that only demonstrates the timely wisdom of late-Victorian social and moral reform projects. Sir Thomas Skyrme, for example, wrote as recently as 1994: “It had taken some forty years for the disastrous provisions of the 1830 Act to be reversed, but by the 1870s the justices had regained the whole of their control over the sale of alcoholic drinks and were virtually restored to the position they had enjoyed previously and which they would retain to the present day” (Skyrme 1994, 657). Although in 1817 the revenue-gathering features of the licence system were frankly acknowledged,13 by the time the magistrates regained their power over pubs the revenue function had shifted to the background. This was in keeping with the decline of the eighteenth-century policescience practice of treating revenue together with “police,” with revenue defined as maximizing the welfare of the rulers, and “police” defined as the maximization of the welfare of the subjects (Small 1909, 36).14 That licensing would now be exclusively about public order, not revenue, was made clear in an 1891 decision of the Law Lords that is one of the few high-level judicial pronouncements in British history on the rationality of licensing. This was given in the case of a Ms. Sharpe, who had her public-house license taken away not because she breached the explicit or the unwritten conditions of licensing but for the legally flimsy reason that there were many pubs in the district already and the licensing bench had expressed worries about “the remoteness of the premises from police supervision” (Sharpe v. Wakefield, Law Lords 1891, 185). In confirming the magistrates’ discretionary powers to take Ms. Sharpe’s license away, the Law Lords wrote a series of opinions making it clear that licensing had now become what it would be again for New Labour, namely, a question of how to prevent disorder, Lord Bramwell wrote: 13 The 1817 Report constructs the concern about excise and other fiscal issues as a temporary intrusion into the long dure´e of British order maintenance, however: “Your Committee remark that from the period of Edward VI to the reign of George II, the Legislature in imposing the necessity of a licence had solely in view the question of Police; all their regulations were principally directed to the good and orderly management of public houses as connected with the preservation of the public morals and peace” (House of Commons. 1817. Parliamentary Papers. Vol. 7, 4). 14 The old meaning is not quite obsolete. Black’s Law Dictionary defines “police power” as “the exercise of the sovereign right of a government to promote order, safety, security, health, morals, and general welfare,” adding, “within constitutional limits.”

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My Lords, I think this is a very plain case, and that the judgement should be affirmed. Houses of public entertainment and for the sale of drink have been in this country and in many others the subject of regulation for police purposes; not for what one may call economic [police] purposes, like the fixing of the price of bread or the wages of labour, but for the maintenance of order. (182) The pioneer of the idea that licensing should be more aggressively used to create public order was the previously mentioned Dr. Patrick Colquhoun, whose experiences in Glasgow municipal government and then on the licensing bench in London prompted him to try to use the license to create order in ways that had not been traditional among Tory lay justices of the peace. He was not merely a practical reformer, however: what the Webbs do not recognize is that he also elaborated a coherent socio-legal theory of the role of licensing in British governance. In his extensive testimony to the Select Committee on the Police of the Metropolis that reported in 1817, Colquhoun described his plan to institute a centralized licensing system that would govern both risky spaces, such as pubs and places of entertainment, and certain risky occupations problematized by authorities and by middle-class moralists in the growing cities of industrializing Britain. “Purchasers of old clothes,” “itinerant Jews,” pawnbrokers, street performers, and various other informal-economy workers, such as rat catchers, should be regulated by subjecting them to the self-disciplining mechanism of the license, Colquhoun argued (House of Commons. 1816. Minutes of Evidence, Parliamentary Papers. Vol. 5, 33ff.). The older governance tradition, in which the public-order aims of police-powers regulation were still attached to the state’s fiscal interests, is clearly visible in Colquhoun’s plan. He proposed setting up a centralized, statewide agency that would replace the magistrates and other local agencies involved in licensing, an agency infelicitously called a “Board of Police Revenue” (Colquhoun 1969 [1806], 560). Despite its quasi-mercantilist name and location within the state, revenue was not to be this board’s main aim. The board’s main purpose was not to raise funds for the sovereign but rather to create the conditions of transparency—economic and physical transparency—among the very occupations thought to be most involved in obscuring or concealing moral and economic flaws: “While the proposed duties . . . promise to be productive to a certain extent, the Licensing system is likely to purge the occupations placed under control from the imputations which are now but too deservedly cast upon them; and to make them by gradual steps the instruments of detection, instead of the means of concealment, of every species of fraud and violence” (Colquhoun

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1969 [1806], 560). The transparency theme is echoed in Colquhoun’s detailed plan for changing the physical layout of the London docks so as to make it more difficult for dock workers to pilfer coal, sugar, tea, and other products (Colquhoun 1800). The elaborate plans to lower the crime rate simply by minimizing the opportunities to commit crime can be regarded as presaging the late-twentieth-century urban-planning obsession with creating “defensible spaces” in which surveillance does not require specialized police forces but happens naturally, as citizens are provided with unimpeded vistas of parks, courtyards, parking lots, and other urban spaces traditionally associated with concealment and crime (Newman 1972). Colquhoun’s plan for a central agency to gaze into criminogenic and disorderly occupations and activities was in severe conflict with the English tradition of magistrate autonomy and local regulatory initiative. Even in Scotland, where eighteenth-century ideas about police as ensuring welfare persisted much longer than in England (Walker 1999) and where the idea of police as a tool for promoting civic welfare had first been put in practice (in 1714) (Neocleous 1998, 437), a plan for such a centralized board was unlikely to garner support. It is not surprising, therefore, that, unlike many of his ideas about police forces, Colquhoun’s proposal for a central licensing board was never put into effect (Neocleous 1998, 2000). And yet he remains an important and hitherto unacknowledged figure in the complex genealogy of New Labour’s effort to use pub licensing as a tool not only to prevent disorder but to positively create civility.15 After the restoration of the magistrates’ licensing powers in 1870, the next major shift occurred with the onset of World War I.16 Before the war, the temperance movement, influential especially within the Liberal Party, had caused a number of changes to licensing laws and had occupied a great deal of parliamentary time (Gutzke 1989). Prohibition was never on the agenda in the United Kingdom, however, for a variety of cultural and legal reasons; thus the statist innovations prompted by the war, which in North America led to more or less complete prohibition, did not have the same effect in Britain. Nevertheless, the wartime revolution in administration embodied in the Defense of the Realm Act (DORA) brought about a major change not only in how pubs were governed but in the rationale used to govern them. “National efficiency” was used to justify licensing reforms instituted under the broad 15 Changes within police forces that are unrelated to electoral politics have also been important in promoting new preventive ideas. 16 But see Harrison 1971, for an account of the importance of licensing issues in lateVictorian politics.

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umbrella of DORA, including the great cultural shock of closing pubs all afternoon, a change that would persist until the 1980s. The authorities running the new national system strenuously differentiated their own nonreligious, biopolitical, quasi-scientific stance from that of the temperance movement. The preface to the main work on the subject provided by one of the architects of the new policy, Lord D’Abernon, emphasized that reducing the amount of beer sold and the time available to consume it were not moralistic measures, not “part of a policy of Temperance Reform,” but rather “the first attempt to deal with the Drink Traffic solely on the lines of national efficiency, any other aspect of the problem having been barred by the terms of reference” (Carter 1918, ix). Thus the constant refrain of the liquor board set up under DORA went as follows: “what the evidence established was that drink, both as a primary and as a secondary factor, was one of the main causes of inefficiency” (Carter 1918, 5). The biopolitical rationality of efficiency was even used to nationalize some pubs near military and munitions installations (an experiment in state liquor control that did not prosper), as well as forcing a weakening of the alcohol content of beer and a number of other measures that interfered not only with customary leisure-time habits but also with the property rights of publicans. Interestingly the officials who devised the new regulations reinvented Colquhoun’s wheel and set up the “Central Control Board (Liquor Traffic).”17 Unlike Colquhoun and his fellow reforming magistrates, however, this body spent most of its time worrying about aggregate amounts of beer consumed and about such quantitative objects as the correlation between rising wages and beer consumption. Immorality was not a direct target, and indeed the whole apparatus was not designed to govern persons. The board collected data on arrests for drinking and disorderliness, but this was not discussed in terms of vice; instead, the numbers were aggregated and used as a national indicator of wasted national human capital. From World War I on, there were no major shifts in the way that pub licensing was deployed as part of an overall machinery of governance until the Thatcher era, when deregulation mentalities led to a number of changes, such as the abolition of the afternoon closing hour. In the Thatcher era and into New Labour’s regime, liberalization was achieved That beer drinking was a key target of this national agency is belied by its name, but political debates about “the liquor traffic” in colonial Africa had made the phrase “liquor traffic” familiar in the United Kingdom and hence usable. Mentioning pubs or beer in the title might have increased the legitimation problem, given the centrality of pubs and ale within British “tradition” (see website of today’s Parliamentary Beer Club, which lauds ale as a national liquid in a way that implicitly contrasts it to the “lager” supposedly consumed by football hooligans). 17

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in part by leaving the pub as it had been, that is, a regulated realm (temporally regulated at any rate), while providing more freedom for those who chose to drink in restaurants and clubs: restaurants were allowed to serve alcoholic beverages well past pub closing times, for example. This was linked to changes in food and drink consumption patterns, including a growing taste for wine rather than beer. As a result of these legal and cultural changes, the Home Office paper contemplates a world in which middle-class consumers and European tourists in urban England are able to patronize bourgeois restaurants to drink wine at all hours, in the French style, while police are given greater powers to control the younger and more working-class crowds who continue to drink beer in pubs—although class distinctions are, of course, not explicitly mentioned (Home Office 2000). As we see in this selective sketch of some key moments in the history of pub regulation, licensing is a technology that can be and has been used as part of very different rationalities: mercantilism; the order-andtransparency project of the urban reform thinkers of the late eighteenth century; the “national efficiency” obsession of World War I; and, finally, today’s neoliberalism. A key continuity underlying the variety of ways in which licensing mechanisms have been deployed in liberal legal systems is that because it does not touch citizens directly, governing instead the times, opportunities, and places in which potentially problematic activities take place, it fits perfectly with the project (taken up in recent years by New Labour as well as by more conservative governments in North America) that seeks to prevent crime not by punishing people or changing their souls but rather through instituting environmental and temporal measures to lower crime opportunities and hence impersonally fostering civility (Garland 2001). Straw’s white paper shows the powerful continuity at work in discussion of pub licensing when, instead of discussing the health risks involved in the drinking habits of British males (as would be done by harm-reduction experts), it returns to the Colquhounian public-order rationale by declaring that the three purposes of licensing are as follows: “protecting the public from crime or disorder,” “protecting children from too early an exposure to alcohol,” and “preventing nuisance and disturbance to the public” (Home Office 2000, 7). T H E K N O W L E D G E F O R M AT O F P O L I C E P O W E R S : “ A H I S T O RY O F D E TA I L I N T H E E I G H T E E N T H C E N T U RY ”

The late eighteenth century witnessed the rise of a number of relatively new knowledges, among them liberal political economy. The greatest

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theorist of the new economic governance, Adam Smith, differentiated his new science of wealth from the concerns of the police scientists by simply labeling their interest in the details of public administration as unworthy. In his lectures on jurisprudence, Smith discusses at great length the kind of economic regulation (to ensure “cheapness and plenty”) that is appropriate in modern states. By contrast, the concerns that had occupied not only German theorists (Knemeyer 1980) but also people like Dr. Colquhoun were exiled from his theoretical kingdom: Police is the second general division of jurisprudence. The name is French, and is originally derived from the Greek politeia, which properly signified the policy of civil government, but now it only means the regulation of the inferior parts of government, viz., cleanliness, security, and cheapness or plenty. The two former, to wit, the proper method of carrying dirt from the streets, and the execution of justice, are too mean to be considered in a general discourse of this kind. (Smith 1896 [1763], 154) In a single move, the whole field of public health and public order is facetiously reduced to “the proper method of carrying dirt from the streets,” and this, combined with the whole of the criminal justice system, is relegated to the status of “the inferior parts of government.” For Adam Smith, then, problems such as those faced by licensing magistrates and by reformers like Colquhoun were not within the scope of science and high intellectual endeavors. They were merely technical matters that needed attention from practitioners. Smith’s fame as a great intellectual may depend more than we realize on his quick marginalization of the long epistemological tradition, within which Colquhoun’s work is firmly situated, that consists precisely in paying attention to the details of governance. This tradition flourished in the eighteenth century, certainly, but it is still very much alive today.18 Here we are not in a position to discuss the knowledges involved in determining “the best method of carrying dirt from the street”—although if we think about Mary Douglas’s famous discussion of the great importance of governing dirt (Douglas 1966), it could be said that this whole book is devoted to analyzing how legal processes 18 Unlike mainstream liberal theorists, Foucaultian governmentality scholars do recognize that police techniques and mentalities are still present within liberal regimes (see essays by Foucault, Gordon, and Burchell, in Burchell et al. 1991). But most of these scholars stress the ways in which police-type governance has been limited or replaced by liberal strategies: for example, Mitchell Dean writes that liberalism is “an entirely new mentality of government” whose success has meant that “police is no longer an ideal to be sought by government but one of its techniques” (Dean 1999, 95). In general, seeing police as a distinct field of governance, as Bill Novak (1996) does, instead of seeing it as either a “technique” or a “mentality” helps to explain its longevity in both nonliberal and liberal regimes.

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define what is and is not “dirt.” We shall therefore inquire more specifically into the formation of knowledges of urban disorder as they have been deployed both to effect and to justify pub licensing. The governance of order through pub licensing has not relied on statistics or in numbers of any kind at any time except during the national efficiency crusade of the World War I Liquor Board. It has been effected through ad hoc and usually particular decisions made by magistrates, police officers, and municipal officials. None of these governance agents have training in either public health knowledges of the aggregate harms of drinking or in psy knowledges of alcoholism. One way of capturing the specificity of the largely local and usually nonexpert knowledge of urban disorder assumed by and created through the licensing mechanism and its enforcement is to highlight the format that this knowledge typically takes. Like other knowledges, police-type writings on disorder use a variety of information formats (cf. Ericson, Baranek, and Chan 1991). But there is one format that is typical, or at least characteristic, of police regulations in general. This is the production of long lists of apparently disconnected, or at least not prioritized, problems and situations, many of which appear to the casual reader to be as trivial as “the best method of carrying dirt out of the streets.” Bill Novak remarks in passing that nineteenth-century U.S. police regulations often consisted of nothing but such lists, in which every possible risk to health, morals, safety, or transportation efficiency was consecutively visualized, in no particular order. Indeed, Novak’s book starts with such a list: the city of Chicago’s police powers, as set out in an 1837 Illinois statute that goes on for three pages of very small type. The three key features of the formal organization of police power/knowledge emerge clearly even when reading only the first few lines: (1) the heterogeneity of governance objects; (2) the simultaneous institution of very broad categories (“public nuisance,” for example) that create swamps of discretion; and (3) the dearth of theoretical justification for selecting these particular objects: First. To prevent all obstructions in the waters which are public highways in said city. Second. To prevent and punish forestalling and recreating, and to prevent and restrain every kind of fraudulent device and practice. Third. To restrain and prohibit all descriptions of gaming and fraudulent devices in said city, and all playing of dice, cards, and other games of chance, with or without betting, in any grocery, shop or store. Fourth. To regulate the selling or giving away of any ardent spirits, by any storekeeper, trader, or grocer, to be drank in any shop,

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store, or grocery, outhouse, yard, garden or other place within the city, except by innkeepers, duly licensed. Fifth. To forbid the selling or giving away of ardent spirits or other intoxicating liquors, to any child, apprentice or servant, without the consent of his or her parent, guardian, master or mistress, or to any Indian. (Novak 1996, 3–4) Colquhoun’s voluminous treatises on police and licensing were organized in precisely this manner, that is, not theoretically but rather by the metonymic technique of “the list.” Hawkers, peddlers, hackney coach drivers, ballad singers, and “itinerant Jews” were among the occupations targeted for licensing and control. Pawnshops, public houses, secondhand clothing shops, metal working shops in which coin might be forged, public gardens, places of entertainment, and the notoriously criminogenic London docks were similarly listed as problematic places (Colquhoun 1969 [1806]; 1800). As in 1837 Chicago, impediments to honest commerce and transportation are put in the same category as impediments to morality. These lists may appear as quaint rhetorical habits, something like the lengthy chapter titles of eighteenth-century novels. But the knowledge format used by police writers is key to understanding not only what Foucault facetiously called “a History of Detail in the eighteenth century” (quoted in C. Gordon 1991, 25) but also the current persistence of police knowledges and police powers, particularly at the municipal level where they generally are not contested.19 The prose style characterized by catalogues of problem places and occupations—a “style of reasoning” (Forrester 1996) marginalized by Adam Smith and by subsequent mainstream political and legal theorists—still exists today. The city of Toronto’s licensing commission typically includes, among many other objects and places, the following: sidewalk hot dog carts, hair salons, taxis, restaurants, street entertainers, street vendors, “adult entertainment parlors” (that is, strip clubs), and massage parlors, both medicinal and sexual. A persistent concern with efficient movement and transparency (in every sense of that evocative word) clearly underlies the production of such lists. Charles Reich tells us, for example, that the New York Com19 National security measures instituted after September 11, 2001, in the United States and elsewhere have shown that the police powers of the central state are by no means a relic of a preliberal past. In Canada, where “police powers” do not officially exist under that name, the federal government has extensive residual powers under the “peace, order, and good government” clause of the constitution; these are known among lawyers as “POG” powers. Nevertheless, when exercised by the central state, police powers are much more contested by civil rights groups and citizens’ groups than when exercised in a less visible, more quotidian fashion by local governments.

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missioner of Licenses was responsible in the early 1960s for the following Colquhounian list of problem spaces and activities: exhibitions and performances, billiard and pool tables, bowling alleys, miniature golf, sidewalk cafes and stands, sightseeing guides, street musicians, public carts, expressmen, porters, junk dealers, second-hand dealers, pawnbrokers, auctioneers, laundries, wardrobe concessionaries, locksmiths, masseurs, bargain sales, bathhouse keepers, rooming houses, barbers, garages, refuse removal, cabarets, coffee houses, and cannon firing. (Reich 1964, 759) The twentieth-century examples of licensing commission’s jurisdiction make it clear that the attempt (perhaps most famously carried out by Henry Mayhew in the east end of London in the 1840s) to exhaustively list criminogenic spaces, potentially fraudulent activities, dangerous times and substances, and risky spaces cannot be regarded as a quaint survival of ancien r´egime absolutist practices. The epistemology of detail is by no means pass´e. Apart from statutes and bylaws authorizing licensing bodies, an important field of governance that routinely features unsystematic lists of potentially risky spaces and activities is the literature on situational crime prevention. This is not surprising, since, as mentioned earlier, police-powers thinkers such as Dr. Colquhoun can be regarded as having invented crime prevention through environmental design. The American National Crime Prevention Council’s large web site, for example, gives community groups advice on how to clean up their neighborhoods that consists of nothing but lists of problem places and activities.20 First, however, there is an injunction for citizens to gather information themselves and put it in the form of lists (a neoliberal twist on the list format). Citizens are enjoined to collect heterogeneous bits of information, from public transportation maps to police arrest data, and neatly arrange them or superimpose them. There is no discussion about how to combine or synthesize or otherwise relate these different sets of data— enumerating them is considered sufficient. If the problems are organized in the form of lists, so, too, the solutions follow the same format. Social techniques (calling neighbors out to a meeting, for example) are given in list form, as are the technical or material solutions to disorder. In relation to graffiti, for example, citizens are given this list of necessities: “For clean-up: scrub brushes, sandpaper, paint scrapers, steel wool, plastic gloves, paint thinner or denatured alcohol, masks, safety goggles, and drop cloths.” The epistemology of the list also characterizes the founding text of 20

http://www.ncpc.org [Sept. 12, 2002].

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contemporary projects to civilize urban space, namely, the article “Broken Windows” (Kelling and Wilson 1982) that gave rise not only to a best-selling book but to a number of revolutions in local police forces. Contrary to many interpretations of the article, it does not claim that disorderly spaces and risky activities necessarily cause crime: it is not a scientific, theoretically formatted argument. Rather, it is a policepowers, commonsense argument that persuades readers by listing a variety of objects that have a certain family resemblance to one another and that combine to form a general impression of disorder, without any quantitative or theoretical proof being given for these connections. Many citizens, of course, are primarily frightened by crime. . . . This risk is very real, in Newark as in many large cities. But we tend to overlook or forget another source of fear: the fear of being bothered by disorderly people. Not violent people, nor, necessarily criminals, but disreputable or obstreporous or unpredictable people: panhandlers, drunks, addicts, rowdy teenagers, prostitutes, loiterers, the mentally disturbed. (Kelling and Wilson 1982, 30) By contrast to the knowledge format used to generate lists of apparently disparate places and activities in need of police-powers governance, the World War I Central Control Board (Liquor Traffic) used the biopolitical knowledge formats familiar in the United Kingdom since the rise of statistics, the knowledge formats pioneered by such zealots of centralized scientific administration as Edwin Chadwick. The key work on the wartime situation declared that the work of licensing pubs was part of a grandiose project to render “the common way of life” “calculable”: The War dramatically changed the common way of life. It called one man from the desk, and made him a soldier. . . . It called women into work that men had hitherto done. It summoned all to a new discipline of life, a worthier use of time and substance. What may be called the output of this altered life, the measure of its gift to the motherland, was calculable, could be ascertained. Whether a man became an efficient soldier within a stated time, whether contracts for shells or for transport were fulfilled, whether the whole community lived frugally and industrially, were definite subjects of enquiry, capable of, and demanding, definite answers. (Carter 1918, 10) And so the Central Board collected avalanches of printed numbers (Hacking 1975, 1991): the aggregate amount of beer consumed in all pubs; the aggregate number of drunkenness arrests in the kingdom; and disease and mortality tables showing the pernicious effect of alcohol not upon individual deviant inebriates but on the body politic as such.

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This eruption of biopolitical calculatory zeal is worth mentioning because texts on liquor issues rarely have numerical information of any kind. It was only the dominance of the national-efficiency paradigm that temporarily eclipsed the knowledge formats characteristic of public-order regulation generally and police science in particular, in favor of the knowledges and knowledge formats familiar to us from other realms. The kind of chart used to justify measures such as pub nationalization would not be seen again in texts on liquor issues until the rise, in the 1970s, of a public-health project to investigate not alcoholics but aggregate demand for alcohol—a project that remained marginal even to fully nationalized state liquor-regulation enterprises, with the partial exception of Finland, all through the golden era of the welfarist state (Sulkunen et al. 2000). Knowledges of aggregate drinking patterns and of the factors that would either raise or lower these aggregate amounts remained largely confined to a few research establishments and had very little effect on state policy governing alcohol advertising or alcohol sales (Valverde 1998a, chap. 7). AUTHORITIES ON DISORDER

The format of knowledges of urban disorder found in legal and criminological discussions of pub licensing and other urban order issues is one that tends to displace statistical knowleges (epidemiological and criminological) in favor of the sort of commonsense knowledge deployed by British justices of the peace for many centuries now. That even today the majority of licensing decisions in Britain (outside London) are taken by middle- and upper-class volunteers who have no legal training, and are neither bureaucrats nor experts, could be read simply as the survival of Tory ways of life. But it could also be read as indicating that in a world where there has been a huge explosion of highly technical knowledges, there are still spaces—particularly within law or in the face of law—in which other knowledges manage to govern without much contestation. The Home Office 2000 white paper on licensing, for example, only uses statistical correlations once: to demonstrate that a uniform pub closing hour correlates very significantly with a peak in traffic accidents. In relation to drinking, however (as opposed to traffic), no statistics are deployed—even though the World Health Organization and specialized alcohol research units around the world have produced many solid studies, using cirrhosis deaths and other indicators, that would allow authorities to justify trying to reduce either aggregate or average drinking. The absence of technical knowledge, in general, and health statistics, in particular, from the practice of licensing and licensing reform is con-

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nected to a “peculiarity of the English” worth mentioning here, even though it cannot be explored in detail, namely, that the famous nineteenth-century rush to produce rows and columns of “social” numbers was, in Britain, not as firmly dominated by the state as it was in Europe. Statistics were originally nothing but “the state’s facts,” of course,21 but even as late as Charles Booth’s and Beatrice Webb’s detailed investigations of poverty and other social problems in the 1890s, private fortunes and private scholars remained key resources deployed to gather numerical knowledges of “the social.”22 The National Association for the Promotion of Social Science, probably the leading purveyor of numerical and technical knowledges of social issues in the mid- and late nineteenth century, was not a state institution. Of course, state inspectors did gather large amounts of data, and parliamentary committees collected and stimulated medical and other expert knowledges; but privately acquired knowledges deployed by people without technical expertise or a university degree were also extremely important in the development of modern techniques of urban governance. As Mary Poovey points out, William Petty’s political arithmetic, an early experiment to accumulate social data centrally for the state’s use, was a miserable failure in the long run, being used in the colonial context of the conquest of Ireland but not for governing England (Poovey 1998). And even Edwin Chadwick’s success in centralizing the governance of national health was temporary, as his much-loved central board of public health was devolved to the municipalities within a decade of his famous 1842 Sanitary Report.23 While English colonial authorities did not hesitate to rule colonial subjects through numbers produced by state officials for the information of the state, English subjects at home proved reluctant to being governed by state knowledges, particularly if they were not paupers. This is the larger political context of the value of licensing as a tool for governing disorder. Through the nineteenth century and into the twentieth, there was a lingering suspicion of central boards (such as the one 21 Probability emerged long before statistics, and was strongly shaped by contract and maritime law as well as by the experience of gamblers (Daston 1988). The constitutive effects of law on what then became scientific styles of reasoning can be glimpsed in a statement made by Leibniz: “Mathematics is the model for reasoning about necessary truths, but jurisprudence must be our model when we deliberate about contingencies” (quoted in Hacking 1975, 86). 22 Also, the key site for public administration education in the early to mid-twentieth century, namely, the London School of Economics, was founded and funded by the Webbs, not the central government. 23 My reading of nineteenth-century British administrative history from the point of view of governance strategies (including my reading of the work of public health reformers) is indebted to Mary Poovey’s innovative Making a Social Body (1996).

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proposed by Colquhoun), in part because the New Poor Law of 1834, probably the most significant experiment in direct rule over the English working class, was widely regarded as a site of tyranny and unnecessary standardization. Police powers, in the United Kingdom as in many other places, have been largely exercised through local agencies wielding not science but nonexpert, hybrid administrative knowledges: it would thus be perpetually problematic for state officials in the Chadwick style to claim publicly the monopoly on knowledges of urban risks. Although some urban risks and disorders were successfully medicalized, coming to be managed through both statistical and clinical knowledges, most of the current risks of urban disorder remain in our own time what they were in the eighteenth century, namely, objects knowable by authorities who are not necessarily state officials (e.g., lay magistrates) and who are not necessarily technically or scientifically trained (municipal inspectors, licensing board members). The legal technology of the license, which externalizes the state’s duty to know and to manage the risks of urban disorder by delegating it to nontechnical, nonexpert personnel, thus converges with a larger epistemological trend in common-law jurisdictions, England most particularly, and also with the corresponding legal and political traditions. It is worth noting that even today British magistrates deciding a licensing case do not have access to anything like a central data bank where license infractions in all districts are recorded, and so they cannot know whether the publican facing their bench has left a trail of disorder in neighboring districts. There is a remarkable dearth of “state facts” in the licensing field, and an equally remarkable persistence of local police powers, exercised in England by magistrates but not qualitatively different from those exercised in North America and elsewhere by zoning inspectors or bylaw enforcement officers. Licensing mechanisms can and do often impose extremely onerous regulatory conditions, and sometime they are used to micromanage spaces and times in the best Bentham tradition. But this micromanagement is not centralized; it is often not even state-initiated, and it is not driven by technical knowledges of risk. It is thus regarded by the authorities—and probably experienced by pub patrons—as a pragmatic response to the risks thought to be inherent to problem activities such as drinking. The techniques used can be critiqued for inefficiency or irrationality, but they are not seen as inherently attacking the liberty of the liberal subject—a situation that corroborates Novak’s claim that the realm of the well-regulated polis is not simply the “dark” or totalitarian side of liberal regimes but, rather, is a distinct field of governance that cuts across the liberal-illiberal divide. Police powers can be exercised liberally (as in many licensing mecha-

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nisms) or illiberally (as when deploying state inspectors), because police, in the classic pre-1800 sense of the word, is not the opposite of liberalism. Police could be defined as a way to problematize order and disorder that developed in Europe with the rise of certain dreams about social and material transparency and symmetry, dreams that were simultaneously aesthetic, ethical, material (cf. fashions in “rational” urban design culminating in Hausmannism), and criminological. The police style of reasoning persisted and prospered at the local level, and this location made it less difficult for it to maintain its legitimacy even into the present era of individual legal rights. Constitutional rights are largely located in national (and now supranational) statutes, and are experienced by citizens as part of their national or supranational citizenship or both. Police powers and mentalities, however, tend to remain below the political radar, in part because they are largely exercised locally and often by those who are not regarded as part of the coercive apparatus of the state but rather as involved in issues of health, safety, and welfare (such as zoning inspectors and bylaw enforcement officers). If police is the field of governance constituted through this essentially urban civic vision of transparency, order, morality, and prosperity, then it becomes clear that there is no zero-sum game whereby less police equals more freedom and more order equals less freedom. The details of how police powers are exercised through various legal and administrative techniques, in specific sociopolitical contexts, need to be examined in order to determine the specific political effects of particular ways of promoting order, civility, and transparency. The case of pub licensing shows that subcontracting the micromanagement of problem spaces and activities through licensing can allow a certain dimension of liberalism to flourish even in the presence of regulations that seem illiberal: order and disorder are positively governed, but at a distance. If indirect rule was the great British solution for the successful governance of colonial risks of disorder, perhaps licensing is the corresponding technique for the governance of domestic urban disorder. States with liberal legal systems can and do manage to govern disorder and vice without necessarily creating bureaucracies or even using expert knowledges. The administrative creativity of regimes that can legitimately claim to be liberal while openly using many techniques of governance that shape conduct and positively demand that citizens uphold certain norms is—as Marx said about the economic creativity of capitalism—something that even radical critics of liberalism ought to marvel at.

CHAPTER SEVEN

“Common Knowledge Must Enter the Equation Somewhere”: Knowledge as Responsibility ✦ The previous chapter outlined some of the historical roots of the knowledges and the governing practices used in today’s systems of liquor licensing. In Britain, as in North America (Valverde 1998a, chap. 7), the knowledges of drinking deployed in the work of licensing and the work of reforming licensing laws are, for the most part, knowledges of urban disorder, rather than, for example, knowledges of individual health. As such, they exhibit the formal and substantive features of “police” knowledges generally, such as the format I call “the epistemology of the list.” Continuing to explore how authority is built and used in the work of law by studying the legal field of alcohol regulation, this chapter first undertakes a close study of how government officials in the province of Ontario make determinations of drunkenness for purposes of licensing decisions. Whereas in England and Wales licensing is done by magistrates, in Ontario, as in other jurisdictions with more or less nationalized systems of liquor control, licensing decisions are the responsibility of a special government agency that, as we shall see, uses police-type knowledges of order combined with notions about universal human nature rather than scientific evidence about specific harms. The second half of the chapter takes us from the problematic space of pubs and bars to the equally problematic—for law and order—space of the highway and considers what criminal courts in the United States and Canada have said about the knowledge of intoxication expected from drivers—or, for that matter, from nondrivers. We will see that the subcontracting or devolution of police powers analyzed in the previous chapter continues to the present day both in liquor licensing and in drunk-driving cases: the Ontario licensing machinery, however, places responsibility on bartenders and servers, whereas criminal courts and appeal courts in both Canada and the United States take the devolution of epistemological responsibilities a step further and insist that everyone knows, or should know, the risks of drinking, particularly the relation between drinking and safe driving.

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In keeping with this book’s interest in how hybrid, nonscientific knowledges are deployed in legal contexts, we shall see in this chapter that, although public health specialists, epidemiologists, and toxicologists are easily available throughout North America, both the study of Ontario liquor board procedures and decisions, and the overview of court decisions on drinking and driving, reveal that the determination of drunkenness is, in these contexts, also firmly placed outside the jurisdiction of experts. Nonexpert knowledges come in many shapes, however: it is not usually helpful to make a binary distinction between “expert” and “lay.” The knowledges that are used and authorized in the two areas of law studied in this chapter look similar when contrasted with science but differ in important respects. A key difference between administrative knowledge and common knowledge is that in the police regulations paradigm, knowledges of urban disorder are mainly owned and deployed by officials, municipal inspectors, police officers, and licensing authorities (as shown in chapters 2 and 6; see also Ruppert 2002). The term “administrative knowledge” (Levi and Valverde 2001) is meant to denote the location of the knowledges as well as its form and characteristic content. “Common knowledge” is heavily implicated in providing both specific content and epistemological authority to administrative knowledge, but it is analytically distinct and, not surprisingly, not bound to administrative centers of calculation and governance, precisely because the information said to be within common knowledge is that which is supposed to be acquired by human beings in the course of their going about their business regardless of occupation or specific experience. A key finding of this chapter that does not simply reiterate but contrasts with the discussion of police powers and knowledges in earlier chapters is that “common knowledge” is not a recognition of administrative experience: indeed, in some cases (Canadian case law on police testimony of intoxication, for example) it is actually deployed to de-privilege officers and officials. It is distinct from (and, in many of the decisions analyzed, sharply contrasted with) what in administrative law is called on-the-job “trade” knowledge. Private-sector employees are generally interpellated in licensing law as generic persons who have certain information that is common knowledge, not job-based knowledge, and who must simultaneously be able and willing to act according to this universally held information to prevent or minimize disorder, displaying the qualities of “prudence” and “foresight” that mark the reasonable person. That the actual content of employees’ prudence and foresight, in relation to drinking, may, in fact, be constituted through either formal or informal training and on-the-job experience is a constantly denied and rejected possibility. No doubt this is done for policy reasons that do not

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amount to Machiavellian machinations: if a particular experience were acknowledged as necessary to spot intoxication, then inexperienced hosts and fellow guests at parties could not be held responsible, for example, for taking car keys away from certain guests, something that would severely undermine the “responsible drinking” campaigns that are ubiquitous these days in many countries. But whatever the motives or policy reasons for the doctrine of intoxication as common knowledge, the effects of it are to deny hospitality industry workers any credit for the formal and informal training and knowledge they have, and it is the effects of doctrine, not the motives or motivations, that concern us here. THE LEGAL DUTY TO KNOW

The operation of “common knowledge” as an imperative imposed by law onto private-sector workers, and through drinking-and-driving law onto ordinary citizens, raises interesting issues for the theorization of the contemporary deployment and “downloading” of legal responsibilities. It also raises methodological issues for the sociology of knowledge. By and large, studies of knowledge production have regarded knowledge acquisition as creating some kind of “capital” (most famously Bourdieu 1987a). Sociologists of knowledge who do not use Bourdieu’s framework—for instance, writers in the science-and-technology studies stream—also generally regard knowledge as a resource. In the situations analyzed here, by contrast, we see knowledge operating more as a burden than a resource: common knowledge puts responsibility on private citizens but does not “empower” them or allow them to accumulate symbolic, juridical (Bourdieu 1987b), or other invisible forms of capital. In these two areas, then, one can discern an interesting legal doctrine that could be called “the duty to know.” Now, the legal duty to know is hardly unique to this field; hence, it is necessary to contextualize briefly the case studies on the duty to know drunkenness through some admittedly sketchy comparisons with other situations in which knowledge duties are imposed. A sphere, briefly mentioned in the previous chapter, in which the duty to know is prominent is that of professional licensing. Professionals licensed by the state are held accountable for any failure to have or to use particular knowledges. In their case, however, the duty to know is an integral part of their professional capital. Their income as well as their prestige is directly based on the fact that the state has acknowledged their special educational credentials and entrusted their profession with a monopoly over the legitimate use of a certain (e.g., medical) knowledge, through the legal technology of the license to prac-

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tice. In the case of self-regulated professions, then (including lawyers), the duty to know is also a privilege, a recognition of special expertise, and a share in a lucrative monopoly. In contract law, epistemological requirements are also part of legal doctrine.1 In deciding whether Mr. X ought to have reasonably foreseen the circumstances that led to the breaking of the contract he had with Ms. Y, the reasonable-person standard imposed on the contracting parties includes not only “prudence” and “foresight” but also some information about markets, weather, and events in general (including the uncertainty of events [O’Malley 2000, 2003]) that is thought to be common currency rather than reserved for specialists. Now, the precise character of the relationship between “the reasonable person” standard and the legal trope of “common knowledge” is beyond the scope of this book and beyond the legal knowledge of this author. For present purposes, it suffices to note a key difference, namely, that “the reasonable person” is as much (or more) a creature who acts with prudence as a person who knows particular facts. The reasonable person is, in many instances, also held liable for knowing certain “common” facts, since acting prudently and reasonably requires having a large amount of heterogeneous information; but, in the end, it is that person’s actions or omissions that are scrutinized. A study of what the reasonable person is expected to know, therefore, could not be done along strictly epistemological lines, since what the reasonable person knows merges imperceptibly with duties that are more ethical than epistemological.2 Leaving aside the thorny question of the reasonable person’s partially ethical knowledge, then, let us return to comparing common knowledge to the administrative knowledges analyzed elsewhere in this book. The common knowledge demanded from bartenders, waitresses, party hosts, and car drivers and passengers is, first of all, similar to police-type knowledges of disorder (and dissimilar from professional knowledge) in that it is qualitative, nonscientific, and non-numerical. However, unlike administrative knowledge, the information about the human body that every waitress and, in some cases, every adult human being is held accountable for is treated as a universal possession. Not only is the subject of common knowledge “universal man,” then, rather than an experienced official, but, in striking contrast to the logic of contemporary This includes not only contracts between two individuals but also such contracts as insurance policies. See Baker and Simon (2002) for several studies of how insurance and other legal technologies distribute the responsibility to know and to manage risks. 2 A typical definition goes as follows: the reasonable person is a hypothetical person who exercises qualities of attention, knowledge, intelligence, and judgement that society requires of its members for the protection of their own interests and the interests of others” (Barron’s Dictionary of Legal Terms, 3rd ed.). 1

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biomedical science, the knowledge of toxicology and chemistry imputed to untrained people also takes the form of generic, abstract universality; that is, no allowances are made for individual or group variability in the experience of drinking. That it is difficult to interpret bodily signs is readily admitted by courts and administrative agencies, but this oftenmentioned difficulty is immediately minimized through the imposition of a “common knowledge” that, as we shall see, erases variability and idiosyncrasy among drinkers, as well as erasing the particular knowledge of individuals, groups, and locales that industry employees actually hold. Overall, then, the common knowledge demanded of unskilled private-sector workers through the mechanism of licensing law does not work to grant any autonomy, self-regulatory powers, or symbolic prestige to the occupations of bartending and waitressing. Similarly, knowing the risks of drinking does not confer any authority, capital, or status on drivers or on hosts: the absence of knowledge is punished, but its presence is not rewarded or otherwise recognized. Both licensing and drinking-and-driving decisions elaborate a space of knowledge beyond expertise but also beyond both trade experience and particular people’s experience—a knowledge that is common because it is ascribed to the sphere of common sense, not because it has been proven by surveys to be in fact “common.” The universal man that is constructed in legal discussions about whether waitress A should have known that customer B was drunk is undoubtedly an effect of the overriding policy objective of distributing the responsibility to monitor drunkenness as widely as possible, rather than an intellectual preference for eighteenth-century moral philosophy. But whatever its internal legal roots, the dissemination of images of human behavior that deploy a generic universal person as subject and a generic universal man as object has the effect of giving new life to Blackstonian myths about how specific common law doctrines mysteriously reflect and concretize the deepest truths about human nature as such (Boorstin 1941). And yet, despite the persistence of universally held truths about universal human conduct, common sense and common knowledge do act sometimes to empower certain subjects and even to build up “juridical capital.” When judges use common knowledge to decide a case, that common knowledge becomes part of the judge’s storehouse of what Bourdieu calls professional legal capital (Bourdieu 1987b). This shows that the epistemological space of common knowledge is not a static sphere. Like other forms of knowledge, common knowledge has few intrinsic features: its particular effectivity and hence practical meaning will depend on how it is used, by whom, and in what context. As lawsuits and professional-college hearings involving nurses and doctors re-

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veal, some of the knowledge that professionals are expected to deploy in their practice is not acquired in university or specialized training but is at the level of common sense. But when articulated with professional credentials, common sense becomes part of the professional’s stock, in the same way that empathy and other nonprofessional skills or characteristics become part of a judge’s professional capital when deployed in a professional context. On their part, however, ordinary citizens are expected to have and to use properly a certain indefinite amount of common knowledge of alcohol and its risks without ever being able to transmute either that curious knowledge or their actual knowledge into any form of capital. T H E P R I VAT E S E C T O R ’ S D U T Y TO KNOW DRUNKENNESS

The Alcohol and Gaming Commission of Ontario is an administrative agency that operates at the “sharp end” of the administrative process— the application of the commission’s rules to individuals (Evans 1995, 13). The commission applies the liquor licensing act to licensees and, in particular, has the power to revoke licenses and attach conditions to existing licenses. Evidence heard by the commission is adjudicated on a balance of probabilities; the rules of evidence in Canadian administrative tribunals are “inclusionary in nature” (Re Last Harry’s [1997]);3 and hearsay evidence is also admissible (Re Bishop ‘N’ Blues [2000]). Most important in this context, there is no provision in the statute that requires the commission to hear expert evidence or to attach additional weight to certain forms of evidence over others. The comission “must take a hard look at all the evidence, and come to what it considers to be a reasonable conclusion as to what actually happened, on a balance of probabilities” (Re Tao Dan Caf´e [1997]). Finally, the commission holds significant autonomy from the judicial process; Ontario courts will generally defer to the commission’s determinations, especially on “factual” questions such as whether someone was intoxicated. Errors of fact are only subject to judicial review if found to be patently unreasonable (Blake 1992, 179; Evans 1995, 659–60), and the Ontario Divisional Court has stated that the Alcohol and Gaming Commission “is to be granted due deference,” including on mixed questions of fact and law 3 All the cases indicated by “Re [name of establishment]” can be found on the electronic database Quicklaw, under the menu heading LLBO (Liquor Licensing Board of Ontario). Court cases can also be found on Quicklaw under the relevant database. Decisions of the Supreme Court of Canada, however, do not require Quicklaw and can be accessed by anyone on the web, on the Court’s own site, which is managed by the Universit´e de Montreal (http://www.lexum.umontreal.ca).

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(974120 Ontario Ltd, Ont. Divisional Court, April 28, 1999). Only in rare cases, then, will decisions of the commission—or of the prior Liquor License Board, since amalgamated into the commission—be judicially reviewed by courts, and even then courts will extend deference to those decisions.4 With this brief outline of the legal context, let us proceed to the site of our first licensing case—a bar in a medium-sized town in Northern Ontario with the romantic name Thunder Bay. In 1995 the owner of Thunder Bay’s West Hotel invited the local liquor inspector to speak to his employees about how to spot drunken patrons. Since Ontario law allows inspectors to suspend or cancel on-site licences if it is found that the establishment is permitting intoxicated patrons to be served, it is very useful for licensees to know just where inspectors draw the line. Mr. Romu, the local inspector, obliged and proceeded to enumerate for the benefit of the staff employed at the hotel a number of indications of intoxication: loss of gross motor control, “sleepy eyes,” “difficulty in picking up change,” swaying while standing, staggering, and resting one’s chin on one’s chest (Re West Hotel [1997]). This list is very similar, though not identical, to a list of behaviors presented to all license holders in Ontario in the form of a newsletter from the Liquor License Board telling them how to fulfill their legal responsibility to spot and control drunkenness: Although individual reactions to alcohol may vary, people follow certain general patterns as they approach intoxication. These are the ten main signs that indicate your customer is becoming drunk. . . . Drinkers showing four signs can almost certainly be considered intoxicated: Inappropriate speech volume . . . Motor control (fine) deteriorates . . . Alertness decreases . . . Inappropriate sweating . . . Red eyes . . . Motor control (gross) deteriorates . . . Enunciation poor, slurring words . . . Noticeably shallow breathing . . . Tiredness . . .

4 Aside from judicial review, appeals from decisions of the board can be made to the Divisional Court of Ontario, but only on questions of law. See the Alcohol and Gaming Regulation and Public Protection Act, 1996, and the previous Liquor License Act (R.S.O. 1990 C.L. 19).

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(“Responsible service,” Liquor Licensing Board of Ontario [LLBO] newsletter 03-97) This list is, of course, similar to the ubiquitous lists of signs and symptoms of risk and danger elaborated by administrative innovators in the Patrick Colquhoun line; but it works somewhat differently. A checklist is a tool that citizens, particularly those entrusted with particular governance responsibilities, are to use to govern not only the spaces and subjects that are under their control but also themselves. One uses a checklist partly to govern one’s own governing. Checking off whichever item is present or has been done enables one to monitor one’s progress in governing. And, in this context, going through the checklist (mentally, one assumes, since customers would hardly countenance being scrutinized by someone with a clipboard) and thus governing oneself and the customers simultaneously ensures that the establishment in question is providing what the Ontario government calls “responsible” service.5 Generating checklists is straightforward if there is a consensus on what counts as order. Old-fashioned etiquette books, for example, were full of such checklists, designed so that the anxious hostess could produce a civilized cocktail or dinner party and simultaneously organize and monitor her own labor in an efficient and orderly manner. But the checklist becomes a problematic information format in situations in which the signs of order or of disorder/vice are less than obvious or less than universally accepted. The checklist provided in printed form to licensees cited above attempts to deal with the uncertainty of applying certain facts about the human body in general to particular bodies by stating that “four out of the following ten signs” can be taken to amount to drunkenness. The transparent arbitrariness of both the particular items mentioned and the choice of the critical number four is clearly revealed, however, by the fact that the local inspector provided a different checklist in his in-person appearance. Enumerating the signs of drunkenness is a difficult matter, then. Although most people who have had a lot to drink will exhibit certain physical reactions—poor fine motor control, for example—it is well known to social psychologists and anthropologists (e.g., Marshall 1979) that culturally specific expectations of how people are supposed to behave, different group histories of alcohol consumption, and differences The key slogan of the government agency that has the monopoly on retail sales of wine and spirits is “drink responsibly” (this is printed on the plastic bags one gets at the liquor store). The licensing authority similarly uses the term “responsible service” as a key slogan, which is, in turn, transmitted from licensees to all employees via wall posters, newsletters, and other means. 5

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in both physiological and behavioral responses to alcohol make it very difficult to spot drunkenness in particular, previously unknown individuals, especially in a multicultural population. It should be noted that the semi-expert checklists widely disseminated in popular magazines, educational posters, and other media to help drinkers avoid “alcoholism” are of no use in this context. Alcoholism, or alcohol “abuse” or “addiction,” is a very different clinical entity from drunkenness. Intoxication is not something that alcohol experts like to define, other than by reference to blood-alcohol measurements (which, in any case, are always acknowledged in the expert literature to be inadequate indicators of an individual’s ability to drive). The lack of fit between biomedical knowledges of “addiction” and the requirements of licensing law—which targets only the relation between servers and drunken patrons, avoiding all references to medicalized identities—no doubt contributes to the remarkable absence of expert, particularly medical, knowledges from this legal field.6 To pursue the question of whether the administrative knowledge of drunkenness exhibited by board officials and inspectors matches the “common knowledge” demanded of citizens in other circumstances, some Ontario liquor inspectors were asked in interviews to share their own written or unwritten checklists of signs of drunkenness. In these interviews no specific questions about culture, race, or ethnicity were asked; yet the answers revealed that beliefs about ethnicity and culture may be crucial in shaping the ways in which drunkenness comes to be an object of regulatory attention, at least in the province of Ontario. Every one of the eight inspectors interviewed mentioned certain cultural differences that make the work of spotting drunkenness difficult; the quotes reproduced here are only a sample of the manifold cultural knowledges the inspectors used: “Irishmen can get drunk but they become wild and friendly, not in a bad way like the Indians [i.e., Aboriginal people].” “You can never tell if an Italian is drunk.” “Indians and halfbreeds can’t handle their liquor. They go wild. I used to dread dealing with them.” “It’s hard to tell if Portuguese people are drunk.”7 Occasionally, in policy discussions, linkages are made between drunkenness and alcoholism, but, in sharp contrast to the strong link made, especially in U.S. law, between homosexual identity and sodomitical behavior, in both licensing and drinking-driving situations law is relentlessly focused on behavior. 7 I had hoped to interview a large sample of employed inspectors but lost access to the organization. I then located retired inspectors through their union and was able to get eight, all of whom were interviewed at length during August 2000 by my able research 6

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All the inspectors interviewed were retired, male, and of Anglo-Saxon or Celtic origin; they probably represent, therefore, a racist perspective that is likely moderated in today’s provincial civil service by the ubiquitous Canadian official desire to appear neutral and unbiased regarding race and ethnicity.8 But the way that determinations of drunkenness are mediated by prior beliefs about ethnicity, occupation, class, and gender is probably not unique to older Anglo inspectors. The official voices— board members and inspectors—that one hears when reading the latest (1996–2000) decisions of the liquor board are all careful not to speak directly about race or culture. But the licensees and their staff, who testified in hearings, often proffered—unsolicited—various accounts of their customers’ drinking behavior by way of a sort of “cultural defence,” as we shall see shortly. Both these uses of knowledges of race, culture, and ethnicity (the inspectors’ racist knowledges and the privatesector workers’ knowledge of the culture of their clientele) seriously compromise the attempt to set out general facts about drunkenness in the form of a universal, human-nature checklist. One might ask why Ontario authorities, as well as other licensing bodies, do not circumvent the generic checklist and its obvious arbitrariness by insisting on a technical, culturally neutral criterion that is widely used in the context of highway traffic: blood-alcohol level. One reason is that liquor inspectors would find it difficult both physically and legally to make patrons of bars breathe into a breathalyzer. Nevertheless one could attempt to establish surrogate measures of blood alcohol by replacing the checklists with information about how body weight, food consumption, and other physical factors influence the amount of alcohol one can safely consume before reaching the level set out in other laws—especially since such seemingly culturally neutral information is routinely provided in the SmartServe training course taken by most bar and hotel staff. And given the draconian powers granted to state officials by the Liquor License Act, the regulations could easily be modified to allow inspectors to take along a breathalyzer on their travels; the legal problems of getting samples could be overcome if patrons were asked to volunteer to provide a sample, knowing it is the license holders, rather than drunken patrons, who are at fault if intoxication occurs. All this, of course, is all speculative, but it is highly sigassistant, Dawn Moore. Given the smallness and nonrepresentativeness of this sample, I use the interview data sparingly and illustratively only. 8 The establishment files of the liquor board, many of which I have examined, and other material found in the Alcohol and Gaming Commission’s record group in the Ontario archives suggest that, until the 1980s, being male, white, of British or Irish origin, and an ex-cop were the main job qualifications for liquor inspectors. Now, however, there are many female inspectors and many whose names suggest more diverse ethnic origins.

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nificant that, even in policy discussions, there has been no move toward a technical, neutral, efficient solution to the glaring problems of the arbitrariness of lists of physical signs and the cultural specificity of drunken comportment. In contrast to other areas of law, science and technology are never mentioned in this field, even as potential future providers of more neutral and reliable criteria of drunkenness, despite the salience of the breathalyzer in highway traffic law. The checklist thus appears to be solidly installed as the knowledge format for Ontario licensing law. The checklist format generates (and presupposes) a different kind of knowledge of the body than that produced through technical instruments. A brief comparison is in order, partly to highlight the persistence in our age of legal spaces in which the drive to quantify, technically measure, and numerically record data (Latour 1987; Cole 2001) is simply absent. Despite the differences in specifics, the qualitative checklists used by inspectors on their travels are very similar in both form and content to the list sent out from head offices to all licensees. Whichever checklist is used, the determination of drunkenness involves looking for certain outwardly visible signs—“indicia,” as the board puts it—that are officially admitted to be sometimes produced by factors other than alcohol consumption but that are presented as sufficiently reliable to create a legal responsibility among bar staff. These signs are not symptoms: observing and evaluating them require no particular expertise. Drunkenness, in the licensing context, is regarded as something one can read directly off a body, not as something requiring measurement. By contrast, the results of breathalyzer tests that may have been conducted later—for example, by police officers pursuing a driver who had consumed drinks at a bar before taking the wheel—cannot be admitted as evidence at the licensing tribunal unless a technician or a toxicologist is on hand to present and interpret the findings (Re Million Dollar Restaurant [1997]. This, incidentally, is one of only two licensing cases relating to drunkenness in which breathalyzer results are even mentioned.) Ontario licensing law thus sets up a binary opposition between the expert evidence given by someone whose education may be even more limited than the inspector’s, on the one hand, and, on the other, the nonexpert but still very authoritative evidence of qualitative signs of impairment provided by liquor inspectors. Interestingly, proceeding to deconstruct their own expert/nonexpert binary opposition with Derrida-like speed, commission decisions call the liquor inspectors’ determinations of drunkenness “opinion evidence”—even though inspectors are not experts and, as such, are not entitled to the privilege of giving opinion evidence.

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C O M M O N K N O W L E D G E A S T H E L AW ’ S S U P P L E M E N T TO THE CHECKLIST

The officially generated checklists of signs of drunkenness that bar staff ought to monitor—like many other techniques of administrative law— are compulsory, but they are by no means sufficient. In addition to the officially generated checklists, the bar staff must also use a different, nonofficially produced knowledge: “common knowledge.” This is evident in all the cases that mention this, including the West Hotel case we started with. Let us return to the Thunder Bay West Hotel, then. One month after Inspector Romu’s educational talk, the same inspector found that the hotel in question was serving an intoxicated patron, a Mr. King. According to the board decision, the inspector “acknowledged that he did not speak to Mr. King, nor did he smell any alcohol on his breath nor did he observe Mr. King falling down.” Furthermore, he did not see Mr. King actually take a drink; he only saw him holding a beer bottle. But from what he did observe (that Mr. King was “slow in movement, had a blank expression, his eyes were heavy,” etc.), he “formed the opinion” that Mr. King was intoxicated. The hotel owner argued that, since Mr. King had not exhibited the specific behaviors highlighted in the inspector’s previous educational visit, there was no reason why the hotel ought to have stopped serving him. The board, however, was not persuaded by this argument. In keeping with the responsibilization logic, the board decided that the “indicia” of intoxication listed by the inspector on his previous educational visit were only “illustrative.” The list did not constitute a definition of intoxication or even a complete description. Workers who serve alcoholic drinks cannot evade their responsibilities by simply following the inspector’s advice, the board opined: “Common knowledge must enter the equation somewhere.” This reference to “common knowledge” is a crucial indicator of how legal and administrative powers are deployed through the legal mechanism of the license. What is and is not common knowledge is never set out through either general rules or case law inventories. Courts decide in each specific case which facts about the world’s huge supply of risks should have been known and thus guarded against, not only by the hypothetical “reasonable person” but also by every waitress in the land. Some legal scholars have amused themselves poring over judicial decisions—mainly in civil suits for negligence—to collect all the arcane facts about the world that various judges have decided are part of common knowledge and hence should have been known by unsuccessful plaintiffs. The propensity of mules to kick; the tendency of mad dogs to bite; the viciousness of bulls “especially during breeding season”—these

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and other facts that may be known to the average British country squire but not to everyone else have been held, among many other equally curious facts, to be things the reasonable person ought to know regardless of his or her personal experience (M. Moran, forthcoming.) Now, it would be amusing to pore through decisions of licensing bodies around the world to generate an inventory of the common knowledge of drink and disorder that every waitress and harried bartender is not only supposed to have but is supposed to act on instantly. But more important perhaps, if less amusing, is that, throughout the Ontario Alcohol and Gaming Commission (AGCO) decisions, “common knowledge,” in fact, has little to do with what employees actually know, be it through folk knowledge, knowledge of the individual in question, or knowledge gained on the job. The AGCO regularly rejects many of the observations and opinions proffered by witnesses when such testimony qualifies, specifies, changes, or moderates the board’s perspective on what everyone knows. In the West Hotel case, for instance, waitresses who knew Mr. King personally had formed the opinion that he was not drunk at the time of the inspection, since his behavior was unlike that shown on other occasions when he was definitely drunk—or, as they put it, when his voice changes, his eyes look sleepy, he becomes obnoxious and loud, and he growls and laughs a lot.9 This particular knowledge derived from quasi-experimental conditions was entirely ignored by the board in its findings, however, and was only recounted in the board’s renditions of the witnesses’ testimonies. In the end, the board concluded that “the opinion evidence of Inspector Romu supported by the indicia of intoxication that he enumerates satisfies the board that Mr. King was intoxicated and that the staff on duty knew or should have known he was.” The knowledge of drunkenness imputed to bar staff thus constructs the universal man that was the subject of Blackstonian legal thought as of enlightenment thought generally: this universal Man whose drunken comportment is described by the inspector’s checklists trumps or supersedes the individual features of Mr. King. CONSTRUCTION WORKERS, “NEWFIES,” AND POLES V E R S U S U N I V E R S A L M A N : G RO U P - S P E C I F I C D R U N K E N C O M P O RT M E N T A S C U LT U R A L D E F E N S E

Let us now turn from the shores of Lake Superior to a sprawling suburban community west of Toronto, Brampton. On March 26, 1998, two liquor inspectors visited the Landmark Caf´e. Having observed a group 9

Some of the evidence at the hearing suggested that Mr. King had been taking Valium.

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of patrons that appeared intoxicated, one of the inspectors had the manager request identification from the patrons. In response to this request, the patrons became agitated, and this led to yelling, threats, and profanity against the manager and the inspectors. The police were eventually called. Although it was not disputed that the patrons might well have been intoxicated, defense counsel for the licensee suggested that the altercation that took place was not behavior that “displayed drunkenness, quarrelsome conduct, or disorderly conduct” if the specific characteristics of the actual human beings involved were taken into account. The lawyer argued that “the observed conduct of these patrons was a normal reaction of typical construction workers acting reasonably to being asked to produce identification.” Declining to enter into a discussion about the feelings about state interference and police powers actually or hypothetically found among male construction workers, the board found that the license holder had permitted drunkenness, quarrelsome conduct, and disorderly conduct on the premises (Re Landmark Caf´e [1999]). It is not clear in this case whether any specific checklist of indicia of drunkenness was used, but universal definitions definitely prevailed over efforts to ground the interaction between police and customers in its specific context. The reluctance of inspectors to provide “opinion evidence” about ethnicity and drunkenness when testifying before the board/commission, and the equally marked reluctance of the members of the tribunal even to mention ethnicity or culture, is in striking contrast to the extremely high profile of cultural opinions in the interviews conducted with inspectors. This is not surprising, however, given that state officials know very well that some opinions are best left for informal off-the-job conversation. Licensees, by contrast, sometimes breach this implicit “don’t ask, don’t tell” rule about the relation between ethnicity and drunkenness. An example: in a visit to an establishment by the name of Cravings Fine Foods, an inspector pointed out to the licensees that a patron was drunk (Re Cravings Fine Foods [1998]). According to the recounting of facts in the board decision, the patron was drinking a Budweiser beer from the bottle and showing signs of intoxication. At the hearing the licensees argued (1) that the patron was not drunk but slurred his words because of a speech impediment; and (2) that the inspector’s report that the Budweiser drinker was staggering around was not credible, since the patron “is Polish so he can drink twenty-four beers and still walk straight.” No expert evidence was offered either by the licensee or by the board to either prove or disprove that motorcontrol impairment is culturally or genetically specific. The licensee’s opinion about Polish people was merely said to be “not believable.”

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This sort of opinion, however, was very much in keeping with one interviewed inspector’s opinion that “Italians and Englishmen can handle liquor because they’re born to it.” Licensing hearings provide a site not only for negotiations about the cultural traits of the various kinds of immigrants that populate Ontario but also for discussions about differences between native-born Canadians. In Re Newfoundlander Restaurant (1996), a waitress testified that the establishment where she works is patronised by heavy-equipment operators, construction workers, and Newfoundlanders. Stating at a board hearing that she can determine when someone is intoxicated, the waitress suggested that Newfoundlanders often come up to the bar rather than staying at tables to be served and are physically friendly, which means patrons will “bump into one another” even if nobody is intoxicated. The board dismissed this evidence but typically stayed away from either confirming or denying the waitress’s knowledge of Newfoundlanders. Instead, they simply stated that this case “largely turns on the credibility of the witnesses. . . . The licensee’s witnesses often strayed from their own observations and tried to offer explanations for different signs of intoxication.” The propensity of men of low socioeconomic status to be drunk is also presented as a “fact” in administrative hearings, as one would expect—but, like the current-day inspectors’ knowledge of native peoples and drunkenness, this is not part of the officially produced “common knowledge” of intoxication. Following an accident in which a pedestrian, Glen Gray, was hit by a police car, a board hearing was held in 1994 to determine if Mr. Gray had been intoxicated in the Toronto Texas Pit Restaurant. Conflicting evidence was heard, mostly presented by witnesses who had observed Mr. Gray at the restaurant. One such witness, a captain with the Toronto Fire Department, testified that he was at the restaurant himself and that Gray did not appear intoxicated: his “eyes were not blurred,” he “appeared to be fine spoke [sic],” he spoke “coherently” and “did not stagger.” To authorize himself further, the firefighter said that he “works in Regent Park in Toronto [a public housing project] and can recognize a drunk.” The board was not convinced by this witness. But rather than challenge his knowledge about the class-specific character of drunkenness, they switched to a legal argument, stating that, as a patron, he had no reason to observe Mr. Gray “carefully.” The board instead preferred the evidence of three other witnesses—a forensic toxicologist who had tested Mr. Gray, a taxi driver who testified that Mr. Gary appeared intoxicated, and a police officer who provided hearsay evidence of Mr. Gray’s intoxication. The board appeared particularly interested in evi-

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dence corroborated by the “experienced toxicologist,” but this evidence merely supplemented eyewitness evidence about the disorder in the restaurant (Re Texas Pit Restaurant [1994]). Although expert evidence is used extremely rarely in licensing cases, and was not determinative in any of the cases read, nevertheless the workers in the industry sometimes have their lack of scientific knowledge held against them. In the Brampton construction workers case just mentioned, no scientific evidence was offered to support either side in this dispute, but, despite this absence, the observations of the lay witness were dismissed because “this witness is not an expert and no evidence was proffered to indicate that he had any training in this area” (Re Landmark Caf´e [1999]). These cases may, of course, simply reflect a judgment by the board regarding the credibility of particular witnesses: no doubt licensees and their staff present evidence conducive to keeping the license, rather than acting as unbiased witnesses. But whatever the board’s motives for dismissing the testimony of patrons and wait staff, the material effect of these decisions is to constitute a knowledge that is, on the one hand, compulsory but, on the other, does not confer on the licensee or the staff any status or authority. Obtaining a license to sell alcohol, or working in a place that has such a license, only carries with it responsibilities to know and to manage, without any concomitant increase in either wages or social status to go with the increased responsibility. Inspectors are allowed to give “opinion evidence” even though they have not traditionally had a university education or any science other than knowing isolated facts about alcohol. For them, common knowledge of drunkenness (and of culture, class, and so on) can be transmuted into adminstrative capital. Licensees and bar staff, however experienced and knowledgeable, are, by contrast, denied their own opinions as experts on particular ethnic groups, locales, or regular customers and, more generally, are implicitly told that work experience cannot be exchanged for either status or deference. The legal duty to know is not generated only through precedent and legal doctrine. In addition, there is a government-approved training course, by the name of SmartServe, that is officially sanctioned for workers serving alcohol. This provides knowledge of drunkenness in the shape of checklists, some physiological facts about body weight and alcohol absorption rates, and other advice that contains some scientific facts mixed in with a lot of common sense. But this acts as an extra responsibility rather than a source of certified educational capital. Although server training is now required for new licensees and their servers, the government has denied that the course actually confers any expertise that can then be trusted. In one case a licensee argued that,

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having completed the SmartServe course, she was more qualified to give evidence of drunkenness than were lay witnesses—but the commission paid no attention to this (Re Four A’s Restaurant [1998]). Yet in another decision the year before, the board preferred the evidence of inspectors over that of a doorman specifically because the employee “had not even taken the Server Intervention Program,” whereas the inspectors “were experienced in the assessment of intoxication” (Re Club OV’s [1997]). In another case, the Board imposed, as a condition of reinstating a license, that all staff at the establishment complete this server training program (Re This Month Only Bar 1540 [1996]).10 Thus the SmartServe course is another responsibility, another requirement, and not having it can be used against the licensee, but having it does not confer epistemological authority. The great unspoken in all these complicated negotiations about whether inspectors or patrons or licensees are authoritative knowers of alcohol and its effects is, of course, personal experience of drinking, which is never mentioned as a potential source of knowledge. This was unwittingly corroborated by a retired liquor inspector, who suggested in an interview that a problem with liquor inspections today is that “kids” are hired “right out of college,” and they “don’t have drinking experience” (my emphasis). He argued that checklists to recognize intoxications are less effective than “a ‘common sense’ approach to licensees”— but for him, unlike for the licensing tribunal, experiencing drinking is a good way to generate or at least to supplement “common sense.” His combination of experience and common sense would allow him to “pick out a drunk in a second,” he asserted, something that younger inspectors (who “don’t have drinking experience”) would not be able to do. But his theory that actual experience of drinking helps to shape and define the commonsense notions necessary to govern establishments is totally absent from the textual record. The responsibilization of the private sector for managing the risks of disorder extends further than alcohol. The policing of illicit drug use and drug selling, for instance, is also the responsibility of the licensee in Ontario, not only within the licensed establishment but even outside the property. Newsletters from the commission to all licensees in Ontario, for example, have featured advice on how to spot drug use and drug sales, including recommendations for bartenders to scrutinize patrons looking for jewelery and T-shirts featuring cannabis motifs. (Drawings 10 The board ordered that “all managers, servers of liquor and security staff must hold certificates of a Board-approved server training program course completion within 90 days of commencement of employment.” This is a common outcome of inspections and hearings.

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were helpfully provided in the newsletters examined.) In one case, concerning the Hamilton bar Sand Bar, counsel for the license holder argued that bar staff cannot be expected to search patrons for drugs or drug paraphernalia or drug-related jewelry and furthermore that such searches would be unconstitutional; but the decision stated that the constitutional protection against search and seizure “is not the standard by which the board measures the obligations of the licensee under these circumstances” (Re Sand Bar [1999]). This is in keeping with the general logic of licensing authorities: since getting a licence is, in law, considered a privilege, not a right, it is very difficult to deploy any form of rights argument against the board’s attempts to devolve various policetype duties onto the private sector. The knowledge that is obligatory for those serving alcoholic drinks in licensed establishments is never explicitly enumerated by the board, as mentioned above. It seems to be composed, however, of two distinct elements that rarely are clearly distinguished: it is partly a knowledge of alcohol’s effect on universal human nature and partly a knowledge of law itself. The board routinely mentions this twofold epistemological obligation in its decisions in such offhand remarks as the following: Patrons undoubtedly have a responsibility to ensure their own safety. Licence holders, however, are also given the statutory obligation of monitoring their patrons’ consumption and serving as a brake force if patrons do drink too much. (Re Metcalfe Restaurant and Inn [1997]) Bars, by definition, are places where people go to drink, there may be a party atmosphere, and any one of the number of staff may be serving the drinks. Patrons are clearly responsible for their own conduct. However, the regulatory regime of the Liquor Licence Act and Regulations also imposes a statutory obligation on licence holders to monitor patrons’ consumption and to ensure that they are not served to the point of intoxication. (Re Lido’s in the Beach [1997]) This shows that the obligations envisaged by police-type powers and responsibilities—the obligation to monitor, observe, and manage spaces and activities regarded as inherently problematic from the standpoint of civic order—are not monopolized by state officials and/or members of expert, licensed professions. Needless to say, that ordinary citizens can and do participate in the regulation of urban nuisances and disorders is well documented in studies of community involvement in criminal justice initiatives. But instances of the carrying out of police powers being regarded as a legal obligation among ordinary, nonprofessional citizens

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do not spring readily to mind—particularly when combined with a deployment of the “common knowledge” duty imposed on these citizens. A circular provided by one Toronto establishment to its employees that tries to enumerate some of the components of common knowledge in regard to the risks of drinking may serve to illustrate the onerous character of the duties devolved onto unskilled, low-paid employees by the combination of licensing law and the “common knowledge” doctrine: Keep an eye on your section. If you suspect an individual is becoming intoxicated, immediately inform the manager. These individuals should not be served any more alcoholic beverages. Mention the snack bar to them, and offer them non-alcoholic beverages (juice, water, soft drink), which is free of charge. If they do not comply, find their friends or someone who knows them. Inform the individual and their friend(s) that he/she cannot stay on the premises. Find them a taxi cab to get the individual home. If necessary, pay for it out of your own pocket, and immediately inform the manager. The manager will reimburse you accordingly. (LLBO, current establishment files) “TOO DRUNK TO CLIMB A LADDER”: C R I M I N A L L AW A N D T H E D U T Y T O K N O W

Since the nineteenth century, common law courts have adopted rigid rules regarding the admissibility of lay “opinion” (as opposed to “fact”) evidence. Witnesses not qualified as experts have been limited to describing what their observations were. Inferences drawn from those observations could not be articulated by those witnesses themselves but were instead the province of the judge and jury. The legal entity of intoxication has an inherent tendency to undermine, and indeed to deconstruct, the opposition between opinion and fact evidence. Eyewitnesses can and do give evidence that they saw Mr. X consume three beers or, more commonly, that Mr. X was swaying while walking, had bloodshot eyes, or whatever; but the addition of a few such observations so as to produce the aggregate, somewhat diffuse category of “intoxication” is a tricky epistemic operation. Courts have generally held that eyewitnesses can indeed present what amounts to an opinion, but usually they are pressed to decompose their general impression that Mr. X was drunk into discrete “facts.” This is not because any particular facts are thought to be necessary and sufficient conditions of intoxication but in order to preserve the legitimacy of the legal opinion-fact dichotomy.

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In some cases the “adding up” operation—using a few, almost always arbitrarily chosen and often highly subjective facts to produce the composite entity of “intoxication”—is performed by experts. But, as a recent U.S. annotation on the competency of nonexpert witnesses to testify as to drug intoxication concludes, although courts are divided on the epistemic status of drug intoxication (some courts have held that the effects of drugs are not a matter of general knowledge), they are pretty well united in allowing that nonexperts can indeed give an opinion about intoxication and that scientific knowledge about alcohol and behavior is not required (Miller 1999). A leading California Court of Appeal case is worth examining in some detail, partly because it has been used as a precedent and partly because the treatment of this case in an important article by Sheila Jasanoff (on the rejection of scientific evidence by the jury in the O.J. Simpson criminal trial) demonstrates that misinterpretations can arise when socio-legal scholars identify “science” with “knowledge.” The key issue in the Ojeda case (People v. Ojeda, 225 Cal App. 3d 404 [1990]) was whether police evidence about Mr. Ojeda’s behavior was eyewitness evidence or expert evidence. Jasanoff summarizes the decision as follows: “The California judge excluded the evidence, ruling that the administering police officer could neither be credited as a lay witness (his vision was too experienced for that designation) nor as an expert (his vision was not properly disciplined by the scientific method)” (1998, 723). The decision, however, did not in fact disallow the police evidence regarding the results of the “horizontal syntagmus test” (which involves asking the subject to track an object such as a pen with their eyes and noticing any involuntary jerking). The court cast some aspersions on the scientific value of the test; however, this was not a move to reject its results or the officer’s conclusions but, on the contrary, was a way to affirm the police officer’s not expert but more than eyewitness authority—an affirmation of administrative knowledge as a distinct realm. The court stated that police officers are “not scientists,” since they do not use “experimentation” or “quantification” (providing no source for their definition of science) (People v. Ojeda, 408). But that is as it should be, since intoxication is not within the jurisdiction of science anyway. The officer in question “drew his generalization from experience, not from experimentation”—and, given his time on the force, this experience was not garden-variety, everyday experience but rather “special experience” (406; my emphasis). An annotation on the use of this particular test in impaired driving prosecutions in the United States suggests that courts tend to construct

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intoxication as a loosely put together entity composed of a number of somewhat arbitrarily chosen “facts” (Ludington 1998). No particular quantitative evidence is required (other than in cases involving statutory blood-alcohol limits). Rather, police officers are expected to engage in an indeterminate number of “field sobriety tests,” such as making the subject walk along a line drawn on the pavement, trying to smell alcohol on the subject’s breath, and so on. These tests are qualitative and require no special knowledge or training, but they are part of a particular occupation’s epistemological stock-in-trade—what the California Court of Appeal called “special experience.” The test at issue in the Ojeda case, the “horizontal syntagmus test,” has been scientized by some experts and police officers, who have claimed that the particular place at which the subject’s eye veers from the straight line or jerks away is a reliable indicator of the exact amount of alcohol in the blood. However, on the whole courts have insisted that this test is qualitative, not quantitative—which has not meant, contrary to Jasanoff’s claim, that it is not evidence. Indeed, the California appeals court approvingly cited an earlier court’s statement to the effect that “ ‘the principal obstacle to the admissibility of the horizontal gaze syntagmus test may be its pretentiously scientific name” (People v. Ojeda, 408, citing State v. Murphy 451 N.W. 2d 154 [1990]). Although highway traffic patrol work in the United States qualifies police officers to claim “special experience,” that liminal space between the lay person’s knowledge of everyday events and the expertise of the technicians and scientists, in Canadian law police officers have not been deemed to be special witnesses. Their perceptions of drunkenness are on a par with those of other people. Determining the status of police evidence on intoxication—whether this is expert evidence, common knowledge, or something in between—is the focus of the Supreme Court of Canada’s 1982 decision in Graat (R. v. Graat [1982] 2 S.C.R. 819). Anthony Graat had been convicted of impaired driving based on the observations and opinions of two police constables and a police desk sergeant. The evidence of the officers included observations that Mr. Graat’s car was weaving, traveling at high speed, and driving onto the shoulder of the road; that the constables smelled alcohol on his breath; that Mr. Graat was unsteady on his feet and had bloodshot eyes; and that, when at the police station, the top part of his body was swaying and his walk was “kind of wavy.” No breath samples were taken because Mr. Graat was taken to a hospital for treatment after the accident. The legal question arose from the testimony of the police officers, based on inferences from their observations, that Mr. Graat was im-

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paired to the point that he ought not to be driving a motor vehicle. The following testimony of Constable McMullen goes to the heart of the legal question in dispute: Q: Now, officer, when you were at the scene, and having made the observations of the driving of the accused man, having observed him, having smelled the alcoholic beverage on his breath and observed him walk and observed him standing, observed him speaking to you, what, if any, conclusion did you come to regarding his ability to drive a motor vehicle? A: It was in my opinion that the accused’s ability to operate a motor vehicle was impaired by alcohol beverage. (R. v. Graat [1982], 822) The question on appeal to the Supreme Court was whether the officers, as nonexpert witnesses, were entitled to provide an opinion on whether the accused’s ability to drive was impaired by alcohol or whether they must restrict themselves to detailing their actual observations. In considering this case from the lens of knowledges that inform legal processes, three questions are especially relevant. First, are lay witnesses entitled to provide opinion evidence? Second, even if lay witnesses are entitled to state their opinion as to intoxication, are they entitled to express a further opinion as to whether someone’s ability to operate a vehicle has been impaired by alcohol? Third, are police officers lay witnesses, or should their evidence regarding impaired driving be accorded special status? Both the Ontario Court of Appeal and the Supreme Court of Canada confirm that nonexpert opinion on intoxication is admissible. Deconstructing the fact/opinion opposition that elsewhere in law is rigidly upheld, the Ontario Court of Appeal ruled that “the primary facts and the inferences to be drawn from them are so closely associated that the opinion is really a compendious way of giving evidence as to certain facts.” Drunkenness, then, is something that can be directly “seen” or “observed.” Lay witnesses can diagnose drunkenness even if they have difficulty detailing every individual observation that led to the conclusion (“it may be difficult for the witness to narrate his factual observations individually”; it is “very difficult to verbalize factually a description of an intoxicated person”) (R. v. Graat [1980] 30 O.R. [2d] 247). In this way, drunkenness is rendered directly observable—but is simultaneously reified as a condition that is somehow above and beyond the particular observations, since there is no agreed-on checklist that courts demand when witnesses give evidence about drunkenness. Intoxication is both totally empirical, requiring no expert opinion, and transcendent, since—as was seen in the licensing hearing above—a finding

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of drunkenness does not have to involve smelling alcohol on the breath, seeing people drink, or any other particular fact. This ontologically peculiar condition is regarded by the courts, as it was by the Ontario licensing authority, as something that lies within common knowledge. The Supreme Court of Canada approvingly cited Lord MacDermott to the effect that “intoxication is not such an exceptional condition as would require a medical expert to diagnose it. . . . This is not a matter where scientific, technical, or specialized testimony is necessary.” (R. v. Graat [1982]). The Supreme Court then goes on to consider whether lay witnesses can pronounce not only on whether someone is drunk but also on whether an individual is too impaired to drive. The ability to drive turns out not to be something that actually needs to be tested. Anyone can somehow “see” that X is too drunk to drive. Even people who themselves do not drive, it turns out, are able to pronounce on whether others are able to drive safely. This remarkable expansion of the epistemological jurisdiction of ordinary people is effected by the Court of Appeal as follows: In my opinion, impairment is a degree of drunkenness. . . . It does not require the evidence of a doctor or other expert, nor should it be limited to persons who themselves drive cars. It is a subject about which most people should be able to express an opinion from their ordinary day-to-day experience of life. To testify that a person is impaired is really tantamount to saying “I don’t think that he should have been driving.” (R. v. Graat [1980]) Neither the courts involved in this case nor other courts faced with similar cases spend much time considering whether evaluating a person’s ability to drive requires knowledge of cars, of reaction times, of individual factors determining the effects of alcohol on the body, and so on. Driving and drinking are both “a matter of everyday experience,” and it is assumed that this makes the evaluation of particular drivers a matter for everyday knowledge. Judging impairment is said not to be a legal opinion but an everyday opinion “akin to an opinion that someone is too drunk to climb a ladder or to go swimming” (R. v. Graat [1982]). And perhaps most interesting is that these opinions do not require actual evidence of impaired driving—it is the ability to drive that is in question. Defendants, then, can be convicted even if there appears to be nothing wrong with their driving (R. v. Polturak [1988] A.J. no. 819). Having expanded the epistemological jurisdiction of ordinary people so remarkably, the Supreme Court then proceeds to declare that police evidence concerning drunkenness is no more or less valid than other people’s evidence. This was important because, at trial, a witness who

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opined that Mr. Graat was not drunk was criticized for lacking police experience or other qualifications. By contrast with the California Ojeda court, the Canadian Supreme Court stated: “The fact that a police witness has seen more impaired drivers than a non-police witness is not a reason in itself to prefer the evidence of the police officer.” Indeed, “if the police and traffic officers have been closely associated with the prosecution, such association may affect the weight to be given to such evidence” (R. v. Graat [1982]). By challenging the otherwise pervasive view that police officers’ evidence is more reliable and credible than that of other witnesses, the Court refused to create a new set of witnesses, the sort of witnesses created in Ojeda and, in Canada, routinely constituted in administrative law. The same Court, if faced with an administrative law case, would likely find that evidence given by officials who have no medical or academic qualifications but who have experience on the job can be presumed to be more reliable and useful than evidence given by other people. Apart from the Graat case, Canadian case law is replete with decisions regarding the types of knowledge a judge is entitled to rely on in assessing whether someone is too impaired to drive, and with the role of common sense in making that decision. These decisions often highlight the interplay between scientific knowledge and judicial decision making, the tension that may be inherent between opinion evidence of intoxication and scientific evidence, and the role of courts in mediating that tension. In one of the most significant decisions in this area—that of the Ontario Court of Appeal in Grosse (R. v. Grosse [1996] O.J. no. 1840)—“common sense” has been invoked to reconcile how “ordinary people” drink with scientific evidence that may suggest other possibilities. And it is not only judges who rely on common sense to impose liability for drunkenness. Enacting legislation that disentitles defendants from relying on extreme intoxication as a defense for crimes such as sexual assault, the Canadian Minister of Justice argued that “for Canadians this is not just an issue in common law. This is a matter of common sense”11 (Canada. House of Commons Debates, 1995, 11038; see Valverde 1998a, chap. 8). CONCLUSIONS

Taking these cases together, one thing emerges very clearly, namely, that knowledges of alcohol and of alcohol’s effects on human bodies are regarded as lay rather than expert knowledges. This is a conclusion that It is interesting to note that here the Minister of Justice opposes “common sense” to “common law,” whereas historically a certain amount of authority has accrued to the common law through the semantic slippage between common law and common sense. 11

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challenges the general perception about the growing importance of technical and scientific information within legal processes, yet that is commensurate with the historical roots of liquor regulation in police science. Second, licensing law constitutes an in-between realm of administrative knowledge thought to inhere in the liquor inspectors and other board officials, a trade-based form of symbolic capital that is at one level a contemporary successor to the knowledges of immorality, civic disorder, and vice featured in eighteenth-century writings on police powers and police regulations. Such administrative knowledges coexist uneasily not only with the actual experience of people who drink or serve drinks or both but also with the supposed “common knowledge” that courts imagine everyone shares. Third, in licensing law, the invocation of “common knowledge” acts to create an additional burden in employees, since employees cannot simply just follow the written rules: they must also exercise a mysterious form of discretion through which they might well be obligated to deny a customer another drink even if the customer had not been actually observed displaying any particular set of behaviors. And in criminal cases, too, “common knowledge” acts to forestall all arguments about what person X did or did not know about alcohol in general and about his or her own bodily capacities in particular, since both specific knowledge and specific facts about actual human beings are swept under the rug of universally held knowledge about human nature in general. The sociology of knowledge has been centrally concerned to examine how various kinds of knowledge constitute different kinds of resources, the most famous of these being perhaps Pierre Bourdieu’s analysis of “cultural capital” (Bourdieu 1987a). Important as these studies have been and still are, it is crucial for socio-legal studies also to keep in mind that knowledge is not always a resource: sometimes it is a responsibility that carries with it no visible benefit other than perhaps continued employment in a low-paid job in the private sector (a bar). “Imperative knowledges” have not received the same attention from socio-legal scholars as scientific or other factual knowledges. Studying them more closely—by examining, for example, just where and how people are supposed to gain the knowledge that mad dogs bite, mules kick, drunks fall off ladders, and so forth—may cast some light on the general process of “responsibilization” that Pat O’Malley and other socio-legal scholars have argued is an important feature of neoliberal governance today (O’Malley 1996), but that is rooted, as argued in the previous chapter, in the much older traditions of police-science, English style. David Garland’s brief discussion of Colquhoun’s approach to civic policing is illustrative in this respect, in part because, like other discussions of police powers, it does not fail to mention “alehouse keepers”:

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This “correct system of police,” as [Colquhoun] calls it, is to be put in place not by the state (which barely had the capacity for such extensive action) but by men of influence, philanthropists, patriots, ale-house keepers, merchants, ship-owners, those in charge of parishes, the clergy, and magistrates in charge of business, commerce and the city—in other words, by the institutions of civil society. (Garland 1996, 465) If the sociology of knowledge has overlooked “the duty to know” as it carefully maps how science, training, habitus, and common sense are all transmuted into professional capital, so, too, legal studies have tended to generalize about “rights” and the global spread of rights culture without considering the extent to which many areas of law are not driven by the logic of rights but rather by the logic of duty and responsibility. Individuals who accumulate status, symbolic capital, and economic capital and who claim rights from the state, are, of course, ubiquitous, but these same people, when going out on a Saturday night to have a drink with friends, are neither rights-holding individuals nor owners of technical or experience-based capital. When going out for a drink, people of all walks of life come to inhabit the Colquhounian realm in which nonscientific lists of signs of disorder are used to promote the building of orderly cities in which recreation and leisure are “responsible” and rational. In the civic utopia of rational, moderate recreation, excess of all kinds has been suppressed by the combined efforts of some state officials, many private-sector employees whose license functions to force them to know and to suppress excess, and, last but not least, all ordinary inhabitants of leisure spaces. Regardless of whether they ever drink or drive, citizens are held legally responsible not only for knowing when someone is “too drunk to climb a ladder” or drive a car but even for physically preventing the risks of disorder and harm. The knowledge imputed to them is one that is also held by or imputed to government officials such as liquor inspectors, who must use “common knowledge” as a Derridean supplement to checklists, but in the case of citizens not employed by the state, neither common sense nor common knowledge can be exchanged for recognition or resources of any kind. Common knowledge is for them, as Kant might have said, a pure duty.

CHAPTER EIGHT

Racial Masquerades: White Inquiries into “the Indian Style of Life” ✦ Liquor laws have been an important tool for drawing racial lines in Canada since colonial times, as they have been in the United States and in many countries formerly within the British Empire. Examining the operation of these laws in a broad-stroke manner suggests that, although liquor laws are no longer race-specific on their face, they still play a role in constituting racial and cultural identities. That racespecific liquor laws and their less race-specific successors construct “Indianness” is, of course, hardly a surprising finding; but what was not anticipated at the outset of this research was the extent to which the workings of these laws have had the effect of constituting whiteness as well as Indianness. That Indians1 in Canada are defined and governed through the operation of liquor laws is already known by Canadian legal scholars familiar with aboriginal issues (e.g., Backhouse 1999a, 1999b; Mawani 2000); how white-Indian relations and white identities are also constituted through these and other liquor laws is, by contrast, a question that has not yet been asked. This chapter begins with a discussion of the historical shifts in legal methodologies for ascertaining Indianness and defining its scope. Taking a broad historical perspective, one can see two related changes taking place over the past one hundred years or so. The first is a shift from knowing individual Indians to knowing a transcendental entity, “Indianness.” Early-twentieth-century cases involving the sale of liquor to Indians focused on the individual’s identity (defined through appearance and “mode of life,” or lifestyle); but this type of inquiry eventually gave way to a much more sophisticated legal metaphysics in which comments on physical appearance are studiously avoided. The reported appeal court decisions on liquor issues of recent years distinguish not beIn Canada “Indian” is primarily a legal category that does not encompass all aboriginal peoples, but in both legal and ordinary usage it is also a sign of race rather than legal status. The different meanings of “Indian” are thus sometimes in conflict. See, for example, Connie Backhouse’s fascinating analysis of the Supreme Court decision on Re Eskimos (Backhouse 1999a, chap. 2). 1

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tween Indians and whites but between the non-Indian and the Indian dimensions of Indian life, such that it is said to be legal, for example, to enforce provincial liquor laws because they do not—in the opinion of senior judges—“touch their Indianness.” It should be emphasized that making pronouncements about Indianness is something that courts are forced to do, whether or not the judges in question enjoy amateur anthropology. In Canada, Indian issues, as well as Indian individuals and lands, are within federal jurisdiction, whereas activities Indians engage in but that are not considered part of Indianness—driving, say—are regulated by the provinces. The growing tendency to focus on Indianness rather than on Indians is thus part of the complex evolution of Canadian jurisprudence on the division of powers. The desire of judges and governments to avoid older forms of racist knowledge therefore converges here with constitutional law trends. Judges in the past were not loathe to say that Indians are known for getting drunk. Nowadays, however, a dispute about whether provincial gaming or liquor laws can be applied on federally governed Indian reserves would be discussed through reference to “tradition,” with praise for the positive virtues of traditional food gathering replacing the older penchant for describing Indian vices of consumption. Nevertheless, whether Indian traditions, lifestyles, and habits are positively or negatively valorized, by claiming to know the Indianness lying deep within actual Indians, white judges are continuing to disseminate and generate knowledges of race and culture with deep colonial roots. In land claims law, both the content and the formatting of legal knowledges has been explicitly challenged, and with some success, insofar as the Supreme Court has ruled that orally transmitted stories about origins and land tenure are admissible in court alongside written documents. But in the area of law examined here there is no sign of a critical perspective on knowledge production. The shift from the body and lifestyle of the individual to the metaphysical entity of Indianness is paralleled and supported by another shift in legal method. The early paternalist, missionary-inspired prohibition rationale that Canada shared with the United States and the British Empire eventually gave way to a rationale of “empowering” Indian communities to deal with their own alcohol problems through local prohibition. The governance of liquor, like the governance of health and other matters, is now largely devolved to local Indian communities. Courts have made it abundantly clear, however, that if Indian bands are “empowered,” this responsibilization has been accomplished only through the benevolent action of the federal government, which alone has the power to delegate the governance of disorder in Indian spaces. Thus the empowerment techniques set out in the Indian Act as revised in 1985 do not undermine the sovereignty of the (white) parliament: only the fed-

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eral government can decide if and when to contract out the epistemological work of knowing “race” and knowing drinking-related vice and disorder that is necessary for the operation of bylaws and provincial liquor statutes. It will be demonstrated that whether through paternalism or empowerment, race-specific prohibitions (now generally accomplished through place-specific rather than person-specific regulations) effect the same sort of constitutive “division” of the races that has been amply documented by critical-race scholars in numerous other spheres of legal knowledge production. After surveying these two related shifts in legal methods for knowing race/culture, this chapter then goes on to demonstrate that, although Canadian legal authorities have certainly tried to “fix” race and contain “Indianness” through the deployment of colonial knowledges, they have also ended up saying a great deal about whites’ actual or potential relations with Indians. And finally, the last section of the chapter undertakes a partial analysis of the peculiar legal institution popularly known as the “Indian list.” Kept by the provincial liquor authorities in every province, this list enumerated every person who was “interdicted,” that is, forbidden not only to buy alcoholic beverages but even to possess them. Examining some cases of whites—and of Indians—put on the “Indian list” shows that racial identity can be simultaneously fixed and fluid, and that segregationist practices can coexist with “racial masquerades” of various sorts—including white wives of alcoholic men using the power of the provincial liquor bureaucracy to label their husbands as symbolic Indians who ought not to be allowed to drink even in their private homes. F R A I LT I E S A N D W E A K N E S S E S : H U M A N O R I N D I A N ?

In keeping with earlier colonial statutes prohibiting the sale of “strong liquors” or “spirits” to Indians, race-specific prohibitions were enshrined by the fledgling Canadian state in the late-nineteenth-century Indian Act. The act laid out paternalistic top-down prohibitions that did not so much die out as become transmuted, in the 1980s, into locally agreed-on prohibitions encompassing particular Indian spaces. The rationale for putting Indians in virtually the same situation as minors was rarely made explicit. An 1899 court decision cited in a 1917 case made the “taken for granted” briefly visible in stating: “It is obvious that the whole purpose intent of the Dominion [i.e., federal] legislation is the protection of the Indian, who is believed peculiarly susceptible to, and likely to be injured by, the use of intoxicants” (Riddell J, in R. v. Martin [1917] 41 O.R. 79 at 84). No reported decision (or the unreported ones also examined) shows evidence adduced to show that In-

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dians were or are in fact more likely to be injured by alcohol: the peculiar susceptibility of Indians to drunkenness was “obvious.” The weakness of the will that supposedly makes Indians more likely to abuse alcohol continues to live on in legal epistemology to this day. Even the judge who first struck down the section of the Indian Act that made it an automatic offense for an Indian to be intoxicated in white territory (that is, off a reserve) made the following offhand remark: “Parliament, knowing full well the weakness of the Indian race relative to intoxicants . . .” (Richards v. Cote [1962] 40 W.W.R. 340). This truth about Indians and drink has been reiterated by judges into our own times in statements in which Indians and whites are spoken about in coded, apparently neutral language. The British Columbia Court of Appeal, when asked whether race-specific prohibitions contravened the Bill of Rights current in 1962, stated: In a civilized society such as ours, it is necessary for the good of the whole that certain persons be denied rights or privileges of some particular kind and that particular duties and obligations rest upon certain other persons. And this for a variety of reasons, of which age, ability, and characteristics are some. In my view, it would be a practical impossibility, having regard to human frailties and weaknesses, for an orderly society to exist if there were equal laws for everyone in the sense of the same laws for everyone. (R. v. Gonzalez [1962] 37 W.W.R. 257 at 263–64) This decision manages to combine liberal equality sentiments—it refers to weak willpower in respect to drinking as a “human” frailty, not naming it racially—with the racist belief that race-specific laws governing consumption differentially are justified. The long life of white Canadian law’s unsupported beliefs about Indians, willpower, and alcohol has been prolonged, ironically, by the movement for aboriginal sovereignty. Aboriginal leaders have singled out the damage done to communities and individuals by unhealthy patterns of consuming goods not found in their communities before contact, including but not limited to alcohol. Within aboriginal organizations, sobriety is nowadays given a political meaning. Posters produced by aboriginal health organizations proclaim: “Drinking is not Indian.” This statement, while having the same content as the old prohibitions, has opposite political effects, since it is premised on the rediscovery of precontact forms of life and the rejection of white vices. One could say that the Indian-produced poster “Drinking is not Indian” is a statement about white weaknesses.2 Nevertheless, a white judge could easily read 2

Early-twentieth-century missionary and temperance statements on alcohol differenti-

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the existence of a native sobriety movement as evidence for continuing to uphold paternalistic prohibition. Unlike similar U.S. prohibitions, which were limited to that ill-defined space called “Indian country,” Canadian law stated that Indians anywhere could not be sold liquor. And unlike American laws, which targeted white liquor traffickers, in Canada it was an offense for anyone of whatever race to sell or give liquor to an Indian (Umrau 1996). Of course, Indians who looked like white people’s idea of Indians found it difficult to buy the alcohol in the first place, so their opportunities as liquor providers to their own people were limited. Renisa Mawani’s study of British Columbia M´etis caught by the Indian Act’s provisions on liquor demonstrates, however, that although the liquor statutes were designed firmly to divide the races, the operation of these statutes actually produced a certain amount of hybridity. Mixed-race and Chinese men apparently found it both easy and profitable to travel back and forth between Indian reserves and white towns, playing an important role in blurring the boundaries the law regarded as fixed—the legal boundaries separating Indian from white, the spatial boundaries marking off reserves, and the boundaries of race and culture (Mawani 2000). That Indians—treaty and nontreaty or status and nonstatus, as they are designated—continued to obtain liquor, either black market or from the legal outlets from which they were barred, throughout the twentieth century is clear from oral histories and documentary sources. As the province of Ontario was moving to repeal prohibition and set up a government liquor monopoly, for example, many people with aboriginal ancestry thought that they could just walk into the new state liquor stores and buy a bottle—particularly if they did not live on a reserve, and especially if they had formally given up their Indian status through “enfranchisement,” a legal act that deprived a person of treaty benefits but allowed them white benefits. The authorities in charge of the liquor monopoly in Canada’s most populous province developed a policy to decrease the number of potential legal drinkers—a policy that had the automatic and perhaps unintended effect of increasing the number of Indians. In Canada it is a sacred constitutional principle that anything “Indian” is the monopoly of the federal government. But in the case of provincial liquor sales, as in so many other cases, alcohol consumption provided various government levels government an opportunity to govated between simple drunkenness, which was indeed associated with aboriginality, and alcoholism, which, like other neurotic conditions, was thought to be primarily European. Alcoholism was the European man’s race-specific vice (Valverde 2000). This distinction, however, disappeared from public view, and Indians came to be seen as prone to both drunkenness and chronic alcoholism.

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ern unrelated processes and entities, in this case the hybrid legal and racial category of “Indian.” A circular issued at the very beginning of the Liquor Control Board of Ontario (LCBO), in 1927, described the situation of an “Indian” from a small town who had paid taxes, had never drawn treaty benefits, and had lived in the town rather than on the reserve. Having made himself quite white, he thought he could buy liquor: so he requested a liquor permit (for several decades, individual drinkers needed first to get a permit from the provincial monopoly, a piece of paper that functioned like a ration card). The local store manager wrote to the head office in Toronto to ask for advice. The liquor board responded with a circular that, like so many texts generated by liquor authorities, was not about drink but about something else, here, the legal status of ambiguous Indians: There are a few persons in most Indian bands who for one reason or another are not on the membership list of the band although they were born and brought up on the reserve and are looked upon by the people of the locality as Indians of the band. . . . The fact that an Indian pays taxes and votes in the municipality in which he resides does not of itself change his status. (Circular 63, July 18, 1927, LCBO files, Archives of Ontario; also Circular 526, Nov. 1, 1928, LCBO files, AO) This interpretation of the law was never challenged through judicial review, and so it stood—as did other policies also designed to keep Indians from touching alcohol even when they had, in other ways, gone outside the traditional boundaries of Indianness, for example, by joining the military. A World War II letter from the LCBO to a military commander vehemently complained about aboriginal soldiers’ opportunities to drink in military canteens and presumed to educate the military on federal law: “The enlistment of an Indian did not change his status under the provisions of the Indian Act, which provides that no Indian may obtain intoxicants” (December 18, 1940, File 5-0-27, RG 36, AO). The Indian Act actually prohibited the sale of liquor to Indians, not the purchase, but this subtle distinction was lost in the LCBO’s attempt to govern liquor sales within military canteens. That such policies had to be reiterated constantly suggests, however, that people of aboriginal ancestry regularly managed to evade the restrictions put on their movements and consumption. And yet, although Indians on or off reserves have rarely found it impossible to obtain alcohol, with the exception of some remote northern communities (in which gasoline or glue sniffing often occupies the

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space occupied by liquor in other places), the legal apparatus of racespecific prohibitions did have an important systemic effect whether or not it was vigorously enforced: it marginalized Indians from the spaces of working-class sociability. Indian prohibition had the effect of encouraging such unhealthy habits as drinking a whole bottle rather than ordering a glass, and drinking it quickly so as to avoid detection and unwanted police attention. White Canadians often take the presence of native people gathering with a bottle in urban parks and outdoor spaces as an indication of a chosen cultural habit, not understanding the constitutive role of law in forming what then appears as “culture.” “ T U R N I N G AWAY D R U N K S A N D I N D I A N S ”

In the decades after the institution of provincial government liquor control in the late 1920s, an old question returned: How were the managers of provincial liquor stores, or the bartenders and waiters in the newly legalized hotel beverage rooms, supposed to know who the Indians were? The liquor authorities proceeded as if everyone knew who was or was not an Indian, a problematic assumption. In small communities the race of particular customers was known in the same way that their class status or family situation was known. As Constance Backhouse’s research has shown, for aboriginal people in Canada, racial identity has been as much a matter of reputation as of lineage, with judges often inquiring about the company one kept in order to determine race in ambiguous cases (Backhouse 1999a, 25–26). But liquor inspectors were not at all reluctant to name customers wholly unknown to them—particularly drunk customers—as Indian, and they did so even when working in downtown Toronto, which is home to relatively few Indians and to many ethnic minorities that might look “Indian.” Unlike in prosecutions under the Indian Act, in the licensing situation the inspectors’ taken-for-granted a priori knowledge was not used to govern Indians directly. It was used to decide whether establishments were contravening the law, governing the (white) managers and owners by holding them responsible for knowing their Indian customers. In keeping with the logic of “common knowledge” explored in the previous chapter, this devolution of legal and epistemic responsibility could not have taken place if knowing Indianness had been a matter for anthropologists or experts in aboriginal law. The files generated by the Ontario liquor board on licensed establishments in areas with significant Indian populations suggest that beverage room staff were held responsible for knowing Indianness in the same way they were held responsible for not selling to drunks or minors; that is, through common

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knowledge.3 The inspectors take it for granted that either by personal reputation, appearance, or group behavioural traits, Indians, if not always individually identifiable beyond a doubt, are visible enough for regulatory purposes. One inspector, for example, casually wrote that the waiter he observed during a plainclothes visit “was very diligent in turning away drunks and Indians.” Another inspector noted, in respect to a hotel in the northern town of Fort Frances, that “the clientele is of the lowest type—Indians and bushmen” (LLBO minutes, January 9, 1958). (“Bushmen,” in Ontario, does not denote a racial category but rather forestry workers, lumberjacks.) The slippage between “drunk,” “lowest type,” and “Indian” was undoubtedly strengthened by the tendency to assume that those who look drunk are more likely to be Indian than those who look sober. In the voluminous documents consulted, this chain of associations is broken only once—among about forty mentions of Indians there is only one report noting the presence of half a dozen “orderly” Indians (Brantford hotel file, Inspector’s letter, March 30, 1955). By the late fifties and early sixties, when most of these inspectors’ reports were written, denying service to Indians no longer had any basis in law, since during the 1950s Indians were granted the right to enter licensed premises and consume alcohol there.4 But although the liquor board was fully aware of this change, it took no steps to ensure that discrimination against Indians ceased. Unlike the turning away of women customers, a hot topic for administrative discourse on equal rights, the turning away of Indians gave rise to no reprimands. In 1960 an inspector noted approvingly that a hotel in Kenora, and others in the same area, routinely denied service to Indians during the weekend of the year when federal treaty monies were paid out.5 3 The “establishment files” of twelve drinking establishments with a long history located in seven Ontario towns with significant aboriginal populations (all in the North except for Brantford) were examined. In addition, all comments about “Indians” in the voluminous minutes of the Liquor Licensing Board (from the 1920s to the 1970s) were culled by Ian Baird, who is doing his own research project on the LLBO. 4 A 1951 change to the federal Indian Act was unevenly implemented across provinces; in Ontario Indians obtained the right to go into beer parlors in July 1954. The liquor board was obviously displeased with this move, sending a strongly worded circular to liquor store managers telling them that Indians could “not” buy liquor for home consumption but could just drink beer in bars (Circular 4753, in “Liquor to Indians” file, RG 41-1, AO). Sale of liquor for home consumption was only allowed in 1959 (Circular S-363, “Liquor to Indians” file, RG 41-1, AO). 5 In the file of a Kenora hotel, July 24, 1960, and June 24, 1960. An inspector’s report for September 11, 1958, stated, along the same lines, that a hotel manager told the inspector that “he does not serve many Indians in his establishment as they are a constant source of trouble.”

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Some aboriginal people complained about discriminatory treatment, but individual rights–based resistance does not figure in the official record except in very occasional indirect references. One proprietor, from Fort Frances, hauled up before the tribunal in part because he was seen by an inspector serving several drunk “Indian women,” argued that he was doing his best to prevent Indians from getting drunk (something never distinguished from merely drinking, in the case of Indians). But he added that “they [the hotel] have tried to cut the Indians off but they complain of discrimination” (LLBO Minutes, January 8, 1958). Whatever resistance was exercised by aboriginal people seems to have remained local, however. There is no record of an Indian equivalent to the elaborate inquiry launched in 1951 by an organization in Windsor, Ontario, documenting and challenging the informal segregationist practices of bars in respect to both Canadian Blacks and U.S. Blacks coming across the river from Detroit.6 That Indian identity is something whites somehow know is evident in virtually all mentions of the subject in exchanges between (white) licensees and (white) inspectors and board members. The minutes of one licensing board meeting routinely noted: “Inspector R. . . . said the police told him there is too much beer and liquor being served to Indians here”; and, in regard to an establishment in Red Lake, it was reported that “Mr. H. [hotel manager] told the Board that 10% of the population consists of Indians and they are quite a problem. He said that they don’t serve any liquor, just beer, but the problem is that they can go into a liquor or wine store and make purchases” (LLBO Minutes, January 23, 1958). Along the same lines, in a 1952 board hearing about a Toronto establishment, an inspector stated that “two soldiers picked up Indian women and went upstairs to their room with them without any check being made at the desk.” A Mr. Sedgwick, lawyer for the hotel, never thought to ask how the inspector knew the women were Indians, or what relevance their race had, but rather replied that “it is a difficult problem to check on whether the men and women are married but, however, Indians are now being barred from the hotel” (LLBO Minutes, September 4, 1952). In this, as in other hotels and bars, the total exclusion of anyone who might be Indian seemed to be the safest policy for publicans to follow in relation to keeping the licensing authority happy. Apart from whatever racist feelings bartenders and owners might have harbored, it is clear that the huge discretionary power held by liquor 6 See the lengthy “Brief to the LLBO,” included in the LLBO Minutes for November 1, 1951 (RG 36-10). The brief, written by the Windsor Council on Group Relations, an early civil rights organization, was endorsed by the mayor of Windsor and the local member of Parliament, Paul Martin, a powerful federal cabinet minister.

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inspectors and by the board encouraged licensed establishments to engage in risk-management practices, such as “turning away Indians,” that flatly contradicted the law. The legal framework contained the possibility of arguments and counterarguments about whether someone was indeed an Indian. Although this issue was not taken up by administrators within the bureaucracy, it did reach the courts on a number of occasions. In these cases, dress, language, political facts such as voting or paying taxes, and physical traits were all variously mentioned as “facts” that were or ought to have been noted and evaluated by the person in charge of selling alcohol.7 But these facts, like other kinds of common knowledge, were not set down in a checklist of visible or invisible signs of Indian identity. People involved in selling alcohol were supposed to know by intuition not only who was an Indian but also what criteria were to be used in doubtful situations. This way of holding whites accountable for an intuitive, nonexpert knowledge of racial identity was not unique to this area of law. Constance Backhouse’s thorough study of racial identity in Canadian law concludes that, in legal adjudications of race, epistemological hybridity was the norm: Legal decisions had been based on an amazing array of factors: language, customs and habits, mode of life, manner of dress, diet, demeanour, occupation, wealth, voting history, religion, blood, skin colour, head shape, hair texture, thickness of lips, beard characteristics, facial features, teeth size, eye shape and colour, nasal aperture, cranial capacity, stature, intermarriage, adoption, legitimacy at birth, place of residence, reputation, and the racial designation of one’s companions, to offer just a few examples. (Backhouse 1999a, 54–55) Instead of elaborating a list of signs of race, the courts created a standard that imposed on vendors of alcoholic beverages a vaguely defined responsibility to make inquiries when racial identity was less than obvious. A Saskatchewan Court of King’s Bench was more explicit than most about these inquiries but was nevertheless inconclusive: The applicant says that Felix Jimmy [the supposed Indian] spoke good English but had the appearance of an Indian, so the applicant asked Felix Jimmy to produce his registration certificate, which he did, and there is nothing on that to show that Felix Jimmy is an 7 R. v. Mellon ([1900] 5 Territories Law Reports 301) contains a discussion of wearing moccasins rather than shoes; R. v. Martin (1917) also decided that when “appearances” suggest Indianness, the seller ought to make inquiries, although the nature and extent of these inquiries is not laid out.

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Indian. Felix Jimmy also told the applicant that he had never taken treaty [that is, never received benefits as a status Indian] and that he had voted once. (R. v. Webb [1943] 2 W.W.R. 239 at 239–40) The court concluded that the vendor had done his epistemological duty by initially becoming suspicious and then making inquiries, and that therefore he could not be held responsible for the offense of selling to an Indian. The term “appearance” used in this and other documents might suggest eugenic or other biomedical knowledges. There is no evidence, however, that such knowledges informed determinations made either by witnesses or courts. Although physical appearance was no doubt important, the knowledge of Indian identity held or supposed to be held by whites was, it needs to be stressed, a rather mixed epistemological bag—a hybrid knowledge (Moore and Valverde 2000) making use of legal, cultural, and physical “facts” indistinctly. In one of the few reported cases in which knowledge of appearance is contested, defense counsel for an Indian accused challenged not the determination of Indianness but the finding of drunkenness. As cited in the appeal court decision, defense counsel had argued at trial that the arresting constable was not familiar enough with the local Indians to be able to tell when they were drunk—since sober Indians, according to the lawyer, walked as if they were drunk. The lawyer’s questionable injection of his personal opinion evidence was papered over by a universalistic reference to what “we” (whites, that is) “do know” about Indians, and thus once more a legal official, in this case a judge, introduces his own knowledge as if it were evidence. As to his manner of walking we have only the last witness for the Crown, who only knew him three months, and I don’t think he is in a position to judge. We do know, I think, that Indians—I have seen them at Kamsack [the town] very often—are not particularly upright or soldierly in their bearing unless they have had military service. They are inclined to slouch along. (Richards v. Cote [1962] 40 W.W.R. 340 at 344) Overall, it seems as if the most epistemological work the courts ever asked white witnesses to perform was to make inquiries when a legally or physically ambiguous drinker appeared—any inquiries. The relevance or weight of political facts such as having voted, cultural facts such as language and dress, or physical facts about bodies was never discussed. Thus the legal value of these often randomly produced facts remained largely unadjudicated. In the Saskatchewan case just cited, for example, the judge never said whether voting once was a sign of having

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given up Indian status—because, unlike Indians who were not allowed to vote until the 1960s, he had actually voted—or, on the contrary, whether it was a sign that the man was still an Indian because he had only voted once rather than regularly. The peculiar status of racial identity as an object of knowledge in Canadian law might seem to be in sharp contrast to the longstanding American obsession with “blood,” as in the famous “one drop of Negro blood” rule. However, although the white/Black distinction so fundamental to American law has often been drawn by recourse to “blood” (in a remarkable variety of unstable ways), recent work on the legal determination of the whiteness or otherwise of those who were neither clearly white nor clearly Black shows that, at least in some cases, American courts were just as happy to draw on whatever cultural or other facts were handy, without any concern about methodological consistency. Ian Haney-Lopez’s fascinating study of the decisions under the U.S. immigration rule (lasting until 1952) that naturalization required either “whiteness” or “Africanness” as a prerequisite shows that, in many of the leading cases, the language plaintiffs spoke or whether they were “high caste” was just as likely to be determinative as any biological or anthropological evidence (Haney-Lopez 1996). Thus the epistemological hybridity of Canadian law on drinking and Indianness is not unique, although in other situations in which race was legally constituted, perceptions about biology were often more important. “ P L A C E B E C O M E S R A C E ” : F RO M G O V E R N I N G P E R S O N S T O D E F I N I N G S PA C E S

Governing Indians through their personal identity became increasingly difficult as the Canadian legal system developed powerful legal techniques for measuring and delivering equality. The Bill of Rights in the 1960s, and the Charter of Rights and Freedoms in the 1980s, posed major challenges to the whole logic of the Indian Act. To give only one example: many sections of the old act begin with the phrase “a person or an Indian,” a legal tool for including some whites within the scope of the act that came, over time, to sound as an embarrassing instance of official racism. The Supreme Court of Canada stepped in to address this contradiction between the colonial legacy of governing “Indians” separately and the increased influence of rights-talk in the Drybones case (R. v. Drybones [1970] S.C.R. 282), decided in 1969. This was a narrow case, challenging only one of the liquor provisions of the Indian Act—the one by which being drunk, even in one’s own home or other nonpublic place, constituted an offense for Indians only. In an eloquent decision

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that compares itself to Brown v. Board of Education, the 6–3 majority stated that this section could not be enforced because it discriminated on the basis of race for no good reason. The minority, however, argued very persuasively that the whole of the Indian Act ran counter to the logic of the Bill of Rights, and that the courts could only presume that Parliament knew what it was doing in continuing to hold the Indian Act valid. Drybones might have resulted in all the liquor sections of the Indian Act being either repealed or regarded as unenforceable, but this was not the case. Governing Indian individuals gave way not to race blindness but to governing Indian spaces. A case involving an Indian, ironically called Whiteman (R. v. Whiteman (No. 1) [1971] 2 W.W.R. 316), made this abundantly clear. In this decision a Saskatchewan court declared that the section of the act making intoxication on a reserve an automatic offense is valid, even though it obviously impacts Indian individuals disproportionately. “The right to be intoxicated in one’s own home has never been a fundamental freedom,” the judge stated, going on to say that a statute limiting that nonfundamental right through spatial differentiation was indeed constitutional (p. 320).8 Only in 1983 did an appeal court overturn the Whiteman decision and admit that making intoxication on a reserve automatically illegal amounted to racial discrimination (R. v. Hayden [1983] 6 W.W.R. 655). Anticipating the insights of the new urban geography of space and identity, Justice Hall of the Manitoba Court of Appeal stated that the section on drunkenness on a reserve “is discriminatory on account of race, in that Indians are treated unequally with others by Parliament. In short, by way of emphasis, place becomes race in terms of where one may not be found intoxicated” (R. v. Hayden at 659, per Hall J.A. [my emphasis]). This decision seems to have pushed the federal government into amending the act to remove the offending section. The Hayden “place becomes race” decision was not universally accepted, however. Both the Saskatchewan and Alberta Courts of Appeal issued decisions that undermined it. In 1985 the Alberta Court of Appeal split on a very similar case, with the majority upholding the validity of race-specific prohibition and concluding, in a 2–1 decision, that legislation can indeed single out a group if for a “valid federal objective.” The dissent in this Alberta decision is worth citing here, because it is 8 R. v. Whiteman (no. 1, 1970), Saskatchewan. As late as 1982 an appeal court confirmed the conviction of an Indian found intoxicated in his own home, on a reserve; in this latter case, as in several earlier ones, the court went out of its way to say that drinking is not a fundamental freedom (for example, R. v. King [1982] Sask. D. 5688–01).

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the one and only instance of a white judge questioning the basis of the original Indian Act’s scheme for keeping Indians and alcohol separate. Justice Harradence wrote: I see no reason to justify a different treatment of Indians in this respect than that afforded to other Canadians unless it is accepted that the problem [of intoxication] somehow relates to “Indianness.” No doubt there are drinking problems on Indian reserves, just as there are drinking problems in the humblest homes and in the most elegant drawing-rooms of the nation. No doubt these also create social problems. But I can see no rational connection between the problem of alcoholism and the question of race, and this is the only connection made by the Indian Act. (R. v. Lefthand [1985] 4 W.W.R. 577 at 590) Suddenly the fundamental question—How does the government know that Indians need or want special liquor laws?—emerges out of the silence, out of the background. Whether the special regime is articulated directly by governing Indian individuals or more indirectly by articulating racial identity with space, is there any “rational connection” between the harms of excessive drinking and “the question of race”? What is most remarkable about all the subsequent complex litigation regarding Indianness and alcohol is that Harradence’s question was never again raised, much less answered. No subsequent judicial decision on liquor and Indianness challenged the old colonial/missionary knowledges about the ethnic differentiation of moral weaknesses and vices. This refusal to consider the knowledge question was accomplished partly through a flight into legal technicalities about jurisdiction. From 1985 on, every single reported case concerning Indians and alcohol involves courts being asked to rule on the validity of provincial statutes or band bylaws and to adjudicate the relation between these laws and the “higher” federal law of the Indian Act. But, as Freud would have predicted, the repressed epistemological issue—How do “we” know who the Indians are and what they are like?—continued to haunt later courts, not to mention haunting the aboriginal peoples who were subjected to a variety of white judicial discourses about their cultural identity. A question repeatedly posed to appeal court judges was whether provincial liquor statutes could be used to regulate Indians. This question had arisen many times in the past and had usually been decided by concluding that the provisions of the federal Indian Act should be used to govern Indians’ drinking, not the provincial liquor statutes. However, the gutting of the liquor provisions of the Indian Act, from Drybones to Hayden, and the parallel amendments to the Indian Act passed in 1985

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combined to breathe fresh life into provincial moves to use liquor laws to govern Indian bodies and spaces. But in determining whether provincial liquor laws could be applied to Indian individuals or spaces, post-1985 courts no longer asked whether Mr. X is or is not an Indian. Neither did they raise questions about the boundaries, or the character, of the spaces demarcated by the reserve system by following up on the issues about “place and race” raised by Hayden. Instead, the courts now engaged in inquiries about a transcendental entity known as “Indianness” (as in the quote above from Lefthand). Indianness in this context amounts to something like white judges’ idea of what traditional life might have been like for the “Indians” of Canada considered as a homogeneous group. The problems with this judicial epistemological project become obvious once the project is named: it is well known that there are many different First Nations in Canada and many “in-between” groups, and it is equally well known to every “Indian” and most white Canadians that many of these have been in close contact with some whites since the seventeenth century, thus rendering any account of ahistorical pure Indianness suspect at the outset. But none of the reported decisions names its own epistemological project: instead, the old project to fix the meaning of Indianness is divorced from its missionary and amateur-anthropology roots and translated into the legal language of jurisdiction. Thus the Nova Scotia Court of Appeal confirmed a trial judge’s decision that it was valid to prosecute a Mik’maq “Indian” for selling beer outside the provincial beer monopoly on the basis that provincial liquor laws do not “touch” on “their” “Indianness.” As far as one can see from the appeal decision, this was done without considering evidence about the drinking habits of Mik’maq people. A historical analysis may well have showed that Mik’maq people were not strangers to the rum economy that was constitutive of Maritime white settler communities. Or, alternatively, what Canadian law calls “a contextual analysis” might have shown that, since the beer was being sold, at a modest $1.50 per bottle, to raise money for a reserve-based baseball team, selling beer by the bottle in this case furthered Indianness (R. v. Gloade [1986] 72 N.S.R. [2d] 247). But Indianness was simply taken to be “dry,” ahistorically and without regard to context. In fishing and gaming cases, time is often spent determining whether fish or game is being caught by native people for subsistence purposes or for commercial sale; but with beer no distinctions are drawn among different historical meanings, social contexts, and uses. Beer is beer, and beer is not Indian. Let us turn briefly to a decision that is typical of recent cases in which whites’ knowledge of Indianness is determinative. In the early 1990s some Indians in the remote northern outpost of Old Crow, Yukon, chal-

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lenged a local prohibition bylaw as unconstitutionally curtailing their freedom of choice. In southern Canada local prohibitions often simply mean that people drive to the next town, but in the Yukon, Northwest Territories, and Nunavut, many communities are hundreds of kilometers from the closest liquor store. Hence a local prohibition has a very different effect in the North than in the south. In the Old Crow case, the judge held the bylaw to be constitutional because the impugned legislation and regulations did not affect or touch on the petitioner’s “Indianness,” with the following argument: There is no evidence before the Court from which I can infer that the restrictions on the right to consume, sell, purchase or possess liquor in Old Crow impair the status and capacity of the accused as Indians. There is no evidence from which I can infer that such possession, sale, consumption or purchase is central to the traditional way of life of the band members of Old Crow. (Bruce v. Yukon Territory [Commissioner] [1994] 3 C.N.L.R. 25 at 35) The word “traditional” is crucial. It acts to make the facts about actual consumption irrelevant in the face of the Idea, the fetish, of “tradition.” The legal method of inquiring into Indianness rather that into the wishes and practices of actual Indians allowed this judge to perpetuate the common idea that white Canada may have a history, but Indian Canada only has “tradition,” and this tradition is somehow known to judges in advance. In fishing and hunting cases, either native people themselves or sympathetic expert witnesses often provide evidence to give “tradition” some content, but in drinking-related cases no such evidence is thought to be necessary. Again: beer is beer, and beer is not Indian. This Yukon judge was not making up law as he went along. The basic framework for adjudicating “Indianness” had been laid out by the Supreme Court in the 1985 case involving Indians’ right to hunt out of season (R. v. Dick ([1985] 2 S.C.R. 309 at para. 38). Speaking for a unanimous court, Justice Beetz had generated a classically Aristotelian metaphysical distinction: I believe that a distinction should be drawn between two categories of provincial laws. There are, on the one hand, provincial laws which can be applied to Indians without touching their Indianness, like traffic laws; there are on the other hand, provincial laws which cannot apply to Indians without regulating them qua Indians. Interestingly, an earlier prosecution mentioned by Justice Beetz as valid because the provincial statute in question did not touch on the person’s inner Indianness was for “practicing medicine without a license”—a

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charge against which a cultural defense might well succeed, given aboriginal healing practices. This shows that, as in the earlier inquiries about who is an Indian, the recent inquiries about which dimensions of social life count as Indian proceed without any explicit criteria of investigation. The result of this arbitrary inquiry into what Aristotle would call “modes of Indian being” is that, whereas hunting and fishing have been grudgingly admitted to belong to or even to constitute “Indianness,” other practices that Indians have actually engaged in for centuries, including drinking, are held to be self-evidently outside the scope of Indianness. And although the hunting/fishing cases sometimes deploy anthropological expert evidence, none of the liquor cases do. It is somehow common knowledge that drinking is not Indian, whatever the historical evidence of Indians drinking might show. “A PERSON MASQUERADING AS AN INDIAN”

Moses Ear was a rare being: he was both an Indian and an officer of the Royal Canadian Mounted Police (RCMP). In the mid-1960s he was sent by his superiors to entrap an Alberta hotel manager into selling beer to an Indian, contrary to the Indian Act. Licensed establishments in most of Canada were allowed to sell to Indians by this time, but not in Alberta.9 The hotel manager sold Mr. Ear some beer, after which the manager was promptly charged. Angry at the entrapment, he countercharged Mr. Ear, laying a private information to the effect that Moses Ear, an Indian, was in possession of alcohol off a reserve, contrary to what was then section 94(a) of the Indian Act. The undoubtedly shocked Mr. Ear was then convicted by the trial judge. In this lower court, his “policeness” did not trump his “Indianness.” But when the case went to the province’s appeal court, his modes of being underwent an inversion, and his policeness trumped his Indianness. The appeal judge, who had decided that being a police officer meant that Ear could do things Indians were not otherwise allowed to do, had to work hard to justify the police entrapment tactics that had been used in this case: A person masquerading as an Indian was of no use because in the prosecution of the charges it would be necessary to prove that the informant supplied an Indian as defined in the Indian Act which would be impossible if a person other than an actual Indian was used. (R. v. Ear [1966] 56 W.W.R. 175) The 1951 amendment to the Indian Act that allowed Indians to buy liquor provided by provincially regulated establishments had to be proclaimed by each province before it could take effect. 9

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The figure of “a person masquerading as an Indian” is not as idiosyncratic as it might appear. There is a line of hitherto unexamined liquor-related cases that centrally consider the question of racial fluidity, especially the question of the legal status of whites who lived with or like Indians. Could one prosecute a white person under the Indian Act’s liquor offenses? Could one govern whites through Indian law? Did some whites living in or near aboriginal communities venture so far into the heart of darkness as to be subject to prosecution under Indian law? These interesting questions with deep colonial roots came up in a British Columbia 1929 case. This involved a white man—with some liquor on him—visiting a female friend who lived on a reserve. The white man, Mr. Thompson, was charged under the section of the Indian Act that applied to any “person or Indian” “found in possession of any intoxicant in the house, tent, wigwam or place of abode of an Indian or non-treaty Indian or any person on any reserve or special reserve” (s. 126c of the Act). This section was aimed at that old frontier danger, liquor traffickers. The judge’s comments neither supported nor denied the old colonial knowledge of racial vice that was the rationale for antitrafficking statutes, however. He concentrated solely on the negative effects of this anti-trafficker statute on the harmless pleasures of interracial sociability and interracial employment. Is this subsection then to be construed as creating an offence, if a white man happens to be in the abode of an Indian off a reserve, perchance for a perfectly legitimate purpose, and has in his possession liquor which has been properly purchased? Instances might be related where this would be a most drastic law to be invoked. . . . Is it intended, as it were, to outlaw Indians living off a reserve and associating with white people, so that they could not be invited to visit at the house of any other person, where liquor is possessed by the host or any of his guests? Then again, is an Indian domestic seeking employment, and then making her abode with a white person, to be handicapped in her field for employment because such white person could not, without committing an offence, have an intoxicant either in his possession or that of any one of his family? (R. v. Thompson [1929] B.C.R. 77 at 78) Perhaps because he had an Indian domestic servant, the judge had trouble with the fictions of apartheid constituted in the Indian Act; but he limited his critical remarks to the use of liquor laws to govern white people and their domestic spaces, without challenging the more fundamental legal fictions of separate, fixed racial identities. Several of the cases in which interracial relations rather than Indian-

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ness are at issue dealt with the question of whether Indian agents—allpowerful government officials who acted as judge, jury, and welfare officer in respect to aboriginal groups—had power over those whites who were in or around aboriginal communities and, if so, what kind of power. An early case from Manitoba decided that since the section prohibiting drunkenness in either public or private spaces within a reserve explicitly targeted “a person or an Indian,” a white man who was drunk on a reserve could indeed be charged, convicted, and sentenced by the local Indian agent. The judge, however, told the Indian agent that although a white man could be convicted under the Indian Act, the Indian agent could not sentence a white man to hard labor—a comment that is quite revealing about the routine punishment practices of Indian agents in respect to Indians (R. v. Atkinson [1914] 24 M.R. 308). There were other times when the high-handed methods of Indian agents, rarely questioned when applied only to Indians, were criticized by judges if whites were involved. A 1943 decision cited earlier eloquently denounced the way an Indian agent in Saskatchewan had summarily dealt with a white thought to be selling liquor to Indians (R. v. Webb). A few years later a Quebec court’s decision invalidated the arbitrary seizure of property by an Indian agent who was zealously preventing Indians and alcohol from being in the same place. Again, the agent’s enthusiasm for drawing racial boundaries by means of liquor statutes came to be judicially criticized only because the owner of the property in question was white. The facts of this case are worth outlining here for they show how successful the liquor regime had been, not in preventing Indians from drinking but in forcing them to use subterfuge and bribery to obtain booze that, in this case, had to be quickly consumed in a taxi or parking lot. Reportedly a group of Indians had an agreement with a taxi driver that he would take them to the (white) town, buy booze for them, let them drink it in his car—they were not allowed to enter the sociable working-class space of the bar—and then drive them back to their own community. The driver had already been convicted for his role in getting liquor to Indians and Indians to liquor. But the local Indian agent went further and, without having proof that the owner of the taxi knew what the driver was doing, seized a vehicle lovingly described (in French) as a 1946 four-door, luxury model green Pontiac (Levesque v. Dube [1948] R.L. 367). The judge exclaimed that an Indian agent could not possibly act as an ex officio magistrate with respect to whites the way he did with Indians, in keeping with the case cited above. This Quebec court did not state that only Indians, not persons, ought to be charged by Indian agents; he only invalidated punishing whites with the punishments routinely imposed on Indians by federal Indian agents. Persons

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and Indians were joined in the statute but were separated, in these two cases, for law enforcement and punishment purposes, with whites being spared the arbitrary practices of Indian agents. The final case chosen here to illustrate the ways that racial boundaries were drawn and redrawn in a manner that often directly contradicted the Indian Act’s clauses about “persons and Indians” is a peculiar one because, although whites are thoroughly discussed and theorized in the decision, no whites were present at the events that gave rise to the charge. The actual characters in this case from the far North were, first, a Mr. Itsi, who was said to be Indian, and, second, a group of underage Indian girls, to whom the said Mr Itsi allegedly supplied liquor. The judge decided that Mr. Itsi, being Indian, did not have sexual intentions when offering the liquor, or, alternatively, if he had had sexual intentions, “knowing these girls, he would not have had to resort to supplying [liquor]” (R. v. Itsi, Northwest Territorial Court, 1966, unreported). Since the girls’ apparently notorious lack of virtue made it unnecessary for Mr. Itsi or anyone else to connive or to bribe them with liquor, Mr. Itsi was clearly lacking in criminal intent—which is what the magistrate had decided and the judge was now confirming. The judge did not stop there, however: he went on to comment on the purely hypothetical situation of white men giving liquor to underage Indian girls. There is ordinarily a great difference in the intent when a white man or an Indian gives liquor to young Indian girls. . . . I agree with the J.P. [justice of the peace] that the giving of liquor by a white man to a native girl is ordinarily a prelude to anticipated sexual intercourse. I have been a judge in the North long enough to know. . . . This is notorious. There are other whites in the same category. Included are young researchers or budding anthropologists or sociologists working on their master’s or doctorate theses, who apparently have been told that the best way, and the most enjoyable way, to study Indians or Eskimos is under a maiden’s blanket. To the existing body of judicial knowledge on the virtues of keeping alcohol and Indians separate this judge added a new sexual twist. Although the Indian Act criminalized both “persons” and “Indians” supplying alcohol to Indians, this judge believed that “persons” and “Indians” were in a totally different position when Indian women and girls are being supplied; apparently only whites equate alcohol with sex. Alcohol among Indians is said to be a matter of “sociability,” even when an adult male gives liquor to underage females. Interestingly this construction assumes that white men are not desirable to Indian women: whereas the Indian women were imagined to be ready and willing to

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sleep with Mr. Itsi, they were thought to be interested in white men only if plied with alcohol. A curious theory of white maleness, one might think, for a white male judge to propound. This brief look at the difficulties arising from law’s racial lines shows that legal distinctions and dividing practices sometimes came in direct conflict with what white judges felt were the “realities” of interracial relations. Phrases like, “I’ve been a judge in the North long enough to know that . . .” or “it’s notorious that . . .” or “it’s obvious that . . .” were sometimes used by judges themselves to deploy “experience” against the law—white experience. The whiteness of law can be shown to be internally contradictory, therefore. Even the document that has been described by First Nations people in Canada as the gospel of Canadian colonialism, the Indian Act, could be “creatively” interpreted by judges who claimed that their own (white) experience—for example, of interracial sociability or interracial sex—trumped the law’s text. SYMBOLIC AND ACTUAL INDIANS: A GENEALOGY OF T H E “ I N D I A N L I S T ” 10

In 1976 a (probably white) woman wrote to the head office of Ontario’s Liquor Licensing Board as follows: “I am writing to add my brother’s name to the Indian list for drinkers with a drinking problem” (File 48). A similar letter, also from a woman in a small town, talked about her son: “I am scared stiff of him. . . . I am hoping and praying that he can be placed on the ‘Indian list.’ ” She also enclosed a supporting letter from the son’s long-suffering wife (File 50, 1982). Another mother, who, like many in the “interdiction list” files, lived in northern Ontario, wrote as follows: “I am writing to you to have my son X put on the ‘Indian list.’ He is an alcoholic and gives trouble to a good many people, including me.” Like all the other letters requesting that a certain individual be put on the “interdiction list,” this one prompted a request by the Toronto head office of the board that the local police investigate the allegation. This usually involved talking to the complainant, to the alleged alcoholic The Archives of Ontario has thirteen boxes of interdiction list files (Record Group 36-14). Most of the information pertains to the 1970s and early 1980s (1984 was the cutoff date for archiving when this research was conducted in June 2000). I read through the contents of three randomly selected boxes, containing a total of 152 files, and, for historical background, selected two other boxes that went back to 1959. To preserve the anonymity of those on the list, I have given the files my own numbers (they are unnumbered in the boxes). It is impossible to estimate how many people were on the list in any given year, but for the 1970s and 1980s the number is unlikely to have been higher than five hundred or six hundred. 10

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(who usually denied being one), and often also to neighbors, priests, doctors, and the like. In this case the investigation did not need to be thorough, since the young man in question was already well known to the police. The police quickly wrote back stating that “the above named person is well known to the police force and townspeople as a local ‘drunk.’ He is presently on probation for liquor offences in Sudbury” (File 83, 1985). Occasionally alcoholics put themselves on the list, sometimes with very brief, uninformative notes and at other times with heartfelt descriptions of their lack of success in Alcoholics Anonymous. Some of these requests were less than voluntary, because local police sometimes demanded them from people charged with either liquor offenses or family violence.11 Among the 13 percent of files that contain voluntary requests, somewhat less than half seem truly voluntary. An example is a letter from a man living in a village who wrote, in 1978: “I would like to request to be placed on the Indian list . . . for a period of no less than three years” (File 39). There is, of course, no real dividing line between voluntary and coerced resolutions to avoid alcohol. But the distinction between voluntary requests and those made by others was important administratively: for the voluntary requests, no police or liquor inspector was sent to investigate, which meant that the interdiction came faster, and the stigmatization accomplished through the process of making official inquiries about drinking habits from neighbors and family members was avoided. Thus the draconian apparatus of the interdiction— which made it an offense not only to drink in public but even to possess alcohol in one’s home—could not only be deployed by relatives such as abused wives, as per the creative uses of coercive social control agencies documented by Linda Gordon (1988), but even by alcoholics whose knowledge of the self was that they needed external coercion to supplement their weak willpower. The situations leading to what was popularly known as “being put on the Indian list” and what was officially called “interdiction” ranged from old-age home administrators who disliked residents sharing a bottle of whisky to family doctors worried about their patients’ health (although very few medical requests are found in the files) to local police wanting a stronger tool to deal with panhandlers. Nevertheless, the overwhelming majority of interdictions were initiated by family members—most often, abused wives. A typical file, involving a francophone family in a small town, begins with the following handwritten letter: “I, One file has a letter from a drinker who complains that at an earlier time, he was pressured by police to put himself on the list; in a few other cases, mostly involving Indians on reserves, the voluntary requests are typed on police stationary. 11

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Mrs. H. C., have been advised by the Ontario Provincial Police to put my husband on the Indian list.” Mrs. C. reported that her husband had beaten her so severely that she needed eight stitches; he had also taken an axe to the kitchen walls, and he had already lost his driving license twice. This request, made in January 1969, produced a police investigation, which revealed that “Mrs. H.C. appeared to be a pleasant, tidy person and the home was also clean and comfortably furnished”—in turn generating a warning from the liquor board to the husband.12 The warning, however, clearly had no effect, for the wife wrote again in April, pleading: “please put him on the Indian list please” (File 105). Like other provincial boards, the Ontario Liquor Licensing Board had the power to issue “interdiction orders”13 barring certain people from liquor stores and licensed establishments, and making it an offense for them to possess alcohol. Breaching an interdiction order usually resulted in fines for the mere possession of alcohol that were higher than those generally imposed for “drunk and disorderly.”14 These specifics, however, were not well established in the minds of Ontarians. This may have been because the list was used rarely outside small-town northern Ontario, and, even there, very few people in any one locality were on the Indian list at any one time. Reading the initial letters of inquiry shows that most people had heard rumors about the existence of this list, but some thought it was a list of “actual” Indians, whereas others knew it was specific to drinking but had only the vaguest idea of how it worked. The main confusion was that the government’s list of people not allowed to drink anywhere was often confused with the list of people barred from particular establishments or beer stores by local-management decisions. One harassed wife wrote: “I am writing to see if I can get my husband X put on the deductive list or Indian list. I am having trouble at home with him. He drinks steady, he doesn’t provide” (File 98, 1976). A letter written jointly by several family members requested: “Could your Board put him on the Indian list, or whatever has taken the place of the Indian list?” (File 25, 1978). Even a judge, who was told during a trial for bodily harm that the defendant was on the Interdiction List, exclaimed, “Order of Interdiction, what’s that? I

12 After the mid-1970s the paternalistic letter of warning was replaced by the legalistic “Notice of Proposal,” which asked the alleged alcoholic to attend a hearing to show cause why he or she should not be put on the interdiction list. 13 In 1974 the board lost this power to judges, through judicial review ; but in 1976 it regained the power, for reasons that are unclear. After 1976 most of the interdictions were for an “indefinite” period, whereas in the 1960s they had had to be renewed every year. 14 In the late 1970s the penalty for a breach of the order was a $2,000 fine or one year in prison, a disproportionately heavy penalty.

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thought those went out with the dodoes” (reported in wife’s letter to board, File 49, 1978). The Indian list was clearly not a major means of social control, then, either numbers or in terms of its deterrent effect.15 Nevertheless, examining the way knowledge of Indianness and knowledge of alcoholism merged in the “Indian list” is instructive. The list was a legal tool that replicated the race-specific prohibitions of the Indian Act but in relation to a different (though overlapping) group of persons thought to be particularly susceptible to weakness of the will in relation to drinking: chronic alcoholics. However, the list not only allowed but even mandated public participation in knowing alcoholics. Unlike the old Swedish system, in which the liquor monopoly itself enumerated and supervised problem drinkers, the Ontario system devolved the responsibility for knowing alcoholics to the victims. Wives, mothers, sometimes fathers, and occasionally corporate entities such as old-age homes and Indian band councils, had to take the initiative. Liquor inspectors and other officials acted in response to complaints, not proactively. Thus the interdiction files provide a great deal of information about how ordinary citizens, and abused wives in particular, drew the line between tolerable drunkenness and intolerable alcohol-related abuse. Once placed on the list, a copy of the interdiction order—which had the person’s name but, unhelpfully, not their photograph—was then sent to all the licensed establishments and government liquor and beer stores in the vicinity, with local inspectors being asked to provide appropriate distribution lists. This method of publicizing the interdiction worked only in small communities with few outlets. The ineffectiveness of the system for anything beyond an isolated village is confirmed by the fact that only 2 files out of a sample of 154 pertained to people in Toronto and none to people in Ottawa or Hamilton, also sizable cities. In the Toronto cases, the board made inquiries about where exactly the person in question drank or bought his or her alcohol, so as to target the publicity properly. In those cases the interdiction may have acted as a shaming device; but it would obviously have been easy for the drinker in question to change his or her route somewhat. Like Indians, then, alcoholics placed on the interdiction list were rarely effectively prevented from actually consuming alcohol. The interdiction list, however, served a number of other purposes, since individ-

15 In other provinces no research has been done to document the workings of interdiction, but the statutory mechanisms that were in place in all provinces were clearly used at least sporadically, since there is some litigation around its uses in at least four provinces, although the only recent case (1974) is from Ontario.

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uals, particularly family members, often thought it worthwhile to write numerous, often lengthy letters to the board. If the “Indian list” governed white alcoholics as if they were Indian, what was the situation of those “actual Indians” (to cite the Lefthand decisions’ language) who were put on the list? Of the 154 files examined, 9 pertain to status Indians on reserves. Two of the interdictions apply to more than 1 individual, so there are a total of 12 interdicted Indians in these 9 files. No doubt many other native people were on the list without being identified as such, but these 12 people lived on reserves and were visibly defined as Indian. The first thing to note is that the native people whose letters are in the files did not call it the “Indian list.” One Indian woman, a mother writing to put her son on it, called it the “blacklist” (File 9, 1973/1979), thus unwittingly starting a different “racial masquerade.” A man living on a different reserve who wrote to put himself on the list (likely through police and perhaps also band council pressure) also called it the “Black list” (File 52, 1976). The others simply called it the “interdiction list” or the “list of those who have problems with alcohol.” In keeping with the local empowerment logic of federal governance of Indian peoples and spaces, by the late seventies and early eighties, which is the period covered by almost all the “Indian” files on the list,16 the decision to put someone on the list was not always a top-down, coercive one. Even when it was coercive, local Indian interests and authorities, including band councils and aboriginal police, were involved in the decision. And although it is impossible to generalize from the few files pertaining to status Indians in the collection, those files show that while local aboriginal governance bodies were concerned about disorder, in the tradition of knowledges of urban disorder documented in chapter 6, nevertheless they also used the interdiction system to govern other things, including the mounting costs incurred by the band council when alcohol intoxication resulted in ambulance calls and hospitalization. This is documented in a file that is unique in interdicting three people at once (File 41, 1977–80). It is also unique in that it contains a formal resolution of a band council asking the liquor board to put local troublemakers (two men, one woman) on the list. The chief of the band writes to the board: “For some time now, we the Chief and Council of the X Band have been encountering difficulty with certain band members, with regard to the purchase and consumption of alcoholic bever16 Conversations with two female elders in the North Bay region suggest that whole reserves were “put on the Indian list” after Indians gained the right to drink in provincially regulated establishments in the 1950s. My thanks to Paula Dupuis for this information.

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ages.” The chief encloses a lengthy list of incidents in which the band had to call ambulances or other services (and pay for them, since health services on the reserve are not provided by the province free of charge as they are off the reserve). The band council consulted the local detachment of the Ontario Provincial Police, who suggested the interdiction orders as a way to boost the band council’s authority to limit the inflow of alcohol into the reserve. Discussions with the provincial (white) police had only occurred after the council had already taken measures to prohibit certain individuals—males described as “boyfriends” of the woman in question—from coming onto the reserve. Forbidding these individuals from entering the reserve, however, did not work, since, according to the police, they borrowed their friends’ cars or went in taxis, hence eluding detection. Clearly the band council never imagined that they could stop these individuals from actually drinking. They just wanted to use the liquor bureaucracy to obtain more powers to regulate the inflow of alcohol and of problematic outsiders into the reserve. Soon after the interdiction orders were granted, the three individuals were all charged with contravening the order, repeatedly, over a period of several years. Although there is no record of the dispositions arising from these charges, the band council obviously used the interdiction list—an apparently draconian tool of state social control—for their own regulatory purposes. Although this is the only native file with such complete documentation, a few other files also suggest a kind of collaborative governance. The “welfare administrator” of a band in the far north of the province, for example, wrote to put a Mrs. A. on the list, reporting that the child protection authorities had already taken her children for short periods and were threatening to remove them permanently. This request prompted the liquor board to ask the police to investigate, which in turn generated numerous reports from teachers and social workers, as well as one interview with the woman in question, who said that she had given up heavy drinking and now drank only at home or with friends, never in bars (File 36, 1978). When the liquor inspector eventually showed up with the notice of proposal, by which she was told that she had to show cause or else be put on the list, the woman first refused to receive the notice, and then she demanded a hearing. Hearings were, after 1976, granted if the person about to be interdicted requested them: but they were usually held in Toronto, a location inaccessible to poverty-stricken alcoholics living in the North (the typical “clients”). The order was therefore granted, and the woman in question was said in the official documents to have “chosen” not to attend the hearing. It would seem, then, that however flawed the procedure, and despite the cavalier attitude toward due process shown by the board, there were

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at least some people on the reserve who agreed with the decision to use the interdiction against one of their own. After 1985 Indian bands had the power to impose local prohibitions after a plebiscite of band members and thus did not need to invoke the liquor bureaucracy; but, before that time, the interdiction list was a tool they occasionally used for their own purposes. Another type of knowledge is deployed in many of the files. Many of the white people placed on the list, especially men, were quite irate at the proceedings and expressed their anger in often florid rights-talk, which indicated that a legal rights consciousness had permeated, by the 1970s, even into the “skid row” population. A male resident of a home for the aged, placed on the list by the home’s medical director, wrote at least five long letters in shaky capital letters to demand his rights. This elderly man even attended a hearing (in contrast to most other interdicted individuals) and later wrote to say that the hearing was a waste of time and money (File 82, 1979). An almost illiterate man living in a northern community complained that he had been barred from a local drinking hole for stealing something, not for drinking, and that there was no reason to put him on the list: “I was never cut off at the liquor store or Brewer Beer [Brewers Retail, the government beer retail monopoly] I rather drinking coffee or tea. That I can prove by lots off guys. that’s it . . . I wish this [hearing] was in Sudbury instead of Toronto” (File 84, 1985). But the most remarkable instance of drinkers’ knowledge of legal rights is found in a series of letters by a skid row alcoholic, someone described by police as hanging around liquor stores “bothering people” (File 44, police letter, 1980). This man had no fixed address, so the notice of proposal for the show-cause hearing was sent to the chief of police, who duly sent a constable around to find the man in question at his usual haunts. Once the order was granted, the police were able to charge him and have him fined for merely being in a liquor store. This spatial offense was denounced by the man in question as contrary to his rights: “I was not purchasing anything”; the order “leaves me to be harassed by the local police forces.” Later, he wrote to try to have the order revoked, stating that he planned to leave the area and to stop using alcohol and drugs and that he wanted a clean slate because “being on this list carries a heavy burden, always reminding me of my past.” This letter was written from a prison, a fact undoubtedly noted by the board official who read it and decided not to revoke the order. In contrast to the rights discourse deployed by some of the white male alcoholics put on the list, an “actual” Indian who had been repeatedly placed on the list from 1973 on, and who had numerous convictions for other liquor-related offenses, deployed a nonlegal discourse of

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pleasure for its own sake, a discourse that is otherwise remarkably absent from regulatory and other official discourses on drink (File 9, 1979–82). In 1979 he wrote to say, “I like to drink with the boys in [reserve name] . . . I just like to drink.” Three years later he tried again: “Like I said its been 3 years with no fun they can’t keep me on forever, so could you please get me off.” The final document in this file is a police note stating that he was charged for breaching the interdiction order. The “Indian list” was thus a site on which a number of both experiential and official knowledges of alcohol were deployed and contested. The experiential knowledges visible in the list files are heterogeneous: some drinkers waved the flag of individual rights vigorously and objected strenuously to the draconian proceedings instituted by requests to put them on the list, whereas a significant number of self-defined alcoholics tried to use the list to align state resources with their ethical project in order to supplement their weak will through a state prohibition that might help them to get past a moment of temptation. And, like other sites investigated elsewhere in this book, the Indian list also reveals that experiential as well as official or administrative knowledges of the risks of drinking are often intertwined with, and mediated through, knowledges of other objects and problems, most important the “Indian” of the list’s popular title but also the knowledge of family violence that starkly emerges from the sad letters handwritten by abused wives that make up such a large proportion of the material contained in the liquor board’s interdiction files. C O N C L U S I O N : T O WA R D A N O N D I C H O T O M O U S G O V E R N M E N TA L F I E L D

Despite its draconian appearance, the “Indian”/interdiction list was more than a social-control method to control chronic alcoholics using the techniques previously developed with regard to Indians. It was a wonderfully flexible tool that administrators of homes for the aged could use to maintain order in their institutions and that band councils could sometimes use to further their own aboriginal governance projects. Perhaps, most important, it was a tool that many abused women believed they could use for their own purposes. That ordinary people, as well as organizations like Indian band councils and old-age homes, used the highly illiberal mechanism of the interdiction list to govern their personal spheres shows that it is not possible to draw a sharp line between regulatory or administrative knowledges and lay, bottom-up knowledges. This book has been almost wholly concerned to document the knowledge practices of officials, police officers,

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administrators, and judges: precisely for that reason, it is important to conclude with a brief study that acts to remind both author and readers that the juridical field, as stated in the introduction, is not dichotomous. Women’s personal experience of alcohol-related domestic violence merges imperceptibly, for example, with the Ontario government’s administrative knowledge of the dangers of alcohol—just as Canadian aboriginal people’s experiential knowledge of the harms of alcohol merges imperceptibly with the old colonial race-specific prohibitions. Both the case law study and the social-history study of hotels, liquor inspectors, and people involved in the interdiction system demonstrate better than any theoretical argument the importance of undertaking studies of the production and circulation of knowledges in legal arenas that show knowledge in the process of being produced—dynamic studies that focus on processes and contradictions rather than on principles, final decisions produced by courts of appeal, and static rules. If power is not a thing but a relation—if power does not exist except in particular ways of exercising power and governing others or oneself, as Foucault emphasized—then so, too, is knowledge not a thing or a possession but rather the name for a series of relations that are always shifting.

CHAPTER NINE

Conclusion ✦ The main task of this book has been to document the formation of a number of knowledges in legal arenas. In exploring epistemological fields that lie between the high-level knowledges of scientists and experts and the lay, experiential understanding of law’s practical workings documented by the “everyday life of law” tradition, we have encountered certain knowledge processes—which are simultaneously power processes—that are not exactly unknown but whose function and significance have hitherto gone unremarked. Let us first review some key findings of each chapter, followed by a few more general, future-oriented reflections. After explaining, in chapter 1, the approach to the study of knowledges in law that I use in this book, by means of contrasts and comparisons with some of the main traditions and approaches used in sociolegal studies, chapter 2 moves on to consider a question that is central to several areas of law: How do courts know when communities are being harmed? What kind of evidence about harm to communities or to the fabric of the nation or to both has to be presented to justify the curtailment of individual rights involved in different legal projects to “draw the line” and, more positively, to prevent excess and encourage order? This question arises in U.S. cases involving municipal bylaws that would curtail speech rights and commercial freedom in the name of moral and social order, as well as in Canadian judicial attempts to justify indecency and obscenity law not in terms of offense to morals but in terms of risk of harm. Since harm is increasingly popular as a rationale for the legal regulation of both personal and public morality, it is important to examine the processes by which various actors, inside and outside the courtroom, seek to present knowledges of harm and gain judicial authorization for their knowledge. The third chapter goes on to examine the clues-driven inquiries into “who done it,” most memorably pioneered by the fictional but nevertheless “really” influential Sherlock Holmes. In this age of cultural pluralism and ethical uncertainties it makes sense that the status of forensics and, more generally, the prestige of forensic knowledge formats and forensic knowledge practices has greatly risen. If physical clues are emphasized, the truth of the crime seems to be, as Bruno Latour would say, right there for all to see with their own eyes—objective, culturally

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unbiased, literally visible. A key argument this chapter makes is that in inquiries into the truth of immoral doings, scientific tests and facts are rarely determinative: clues-driven knowledge is a hybrid of science, commonsense, and the kind of partly intuitive and partly archival knowledge exemplified by the nonmedically trained hoarder of heterogeneous knowledges Sherlock Holmes. The obsessive recording and interpretation of the traces of identity unwittingly left behind by evildoers characterize not only crime fiction but also the working life of moralitysquad detectives: this is seen in two Toronto-area trials involving “indecency.” In addition, this type of knowledge, this kind of gaze, is shown to have proliferated outside crime scenes and crime inquiries: the Starr report on Clinton’s misdeeds while he was president is a notable example of the forensic, clues-driven gaze substituting itself for more conventional modes of political and ethical inquiry. Chapters 4 and 5 are two halves of a sustained argument about recent trends in the governance of sexual conduct and sexual identity. While mapping the ways that the Foucaultian opposition between act and identity, conduct and status, continues to provide the basic terms around which policy and law on “homosexuality” go around in circles, these chapters are mainly concerned to trace the outlines of an emerging object that is in some ways “beyond sexuality,” beyond the traditional contrast of act versus identity. This is “sexual orientation”: a recent legal invention that has quickly acquired a strange ontological solidity, both at the level of the individual—people talk about “my sexual orientation” without remembering that sexual orientation is a legal fiction— and at the level of urban communities. A close examination of Canadian human rights cases involving gay/lesbian community requests for mayoral proclamations on Pride Day is one of the elements used to argue that there has been a shift away from the construction of deep identities (deviant or proud) and toward governing through cultural communities and “lifestyles.” Examining the evidence introduced in these Gay Pride Day cases shows that the lesbian/gay communities of North American cities today are not agglomerations of homosexuals: they are novel sociocultural objects in their own right, constituted through a mixture of commonsense reasoning, common-knowledge facts, and a few sociological facts about “lifestyle.” Urban lifestyles are also the target of the legal and policy tools described and analyzed in chapters 6 and 7—but with the focus now on disorderly drinking rather than disorderly desires. The complex and hitherto unstudied structure of governance underlying the licensing of pubs in the United Kingdom is the main research site used in chapter 6 to develop a historical and sociological analysis of the fortunes of Polizeiwissenschaft (police science in the eighteenth-century sense) in the

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common-law world. From the licensing mechanisms proposed by Patrick Colquhoun in the late eighteenth century to the white paper on pub licensing issued by the British Home Office in 2000, one can trace the outlines of what I am calling “police science, British style.” Licensing premises and publicans allows government authorities to demand that the private sector engage in the knowledge gathering necessary to ensure public order, while at the same time obscuring government’s active role in this ordering process. Devolving epistemological responsibilities to the private sector allows for an articulation of liberal governance at a distance with the micromanagement of conduct characteristic of the “police” vision of urban order. Knowing who is too drunk to drive—the question motivating the research presented in chapter 7—is, in both the United States and Canada, the legal responsibility of each and every citizen, regardless of either expert knowledge or personal experience. Considering these drinking-and-driving cases allows me to raise fundamental questions about a curious form of knowledge that appears to exist only in legal contexts: “common knowledge.” Common knowledge is not some kind of average of what people know. It is not descriptive but imperative; it is the knowledge we all ought to have. Since the sociology of knowledge generally assumes that knowledge is a resource, a form of capital, it is interesting to explore a knowledge that acts to responsibilize the public, especially those who work in the hospitality industry, without at the same time allowing any authority or special status to accrue to those charged with the duty of having knowledge of drunkenness and its associated disorders and risks. Finally, the last chapter outlines some of the ways in which a set of laws and regulations usually thought of as anachronisms—protectionist liquor prohibitions applying to Canadian “Indians” and to whites interacting with Indians—can be analyzed in such a way as to shed light on some peculiar knowledge processes found in several areas of law. For many decades Canadian law prohibited the sale of liquor not only to Indians but also to those who “followed an Indian style of life.” The kinds of inquiries necessary to ascertain what an Indian lifestyle was have in recent years (since the racially specific prohibitions were declared unconstitutional) given way to inquiries into what is traditionally Indian about First Nations (aboriginal) community practices. Not surprisingly, these inquiries usually assume and conclude that drinking is not traditionally Indian; hence locally instituted prohibitions affecting aboriginal communities have been declared constitutionally valid. In this area of law, as in the other fields covered in earlier chapters, decisions were made and are still made with nonexpert knowledges. Foremost among these is a (white) commonsense knowledge of “Indian-

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ness.” In addition, an examination of the workings of the “interdiction” system in Ontario—the tool through which chronic alcoholics could be prohibited from having alcohol at home by being put on what was popularly known as the “Indian list”—shows how white popular knowledges of what Indians are and do merged with and gave content to lay knowledges of alcoholism. While spanning unsystematically a wide range of legal arenas, this book has pursued two key themes. One is the continuing importance of intermediate and hybrid knowledges. Inspired by Adrienne Rich’s lesbian-feminist poetry book, The Dream of a Common Language (1978), the book’s title points to a persistent belief—or hope—of common-law jurisprudence: namely, that beyond the little facts known to individual witnesses, and beyond the general facts known to experts, law’s claim to enacting justice depends crucially on the universal resource of “common knowledge.” Like Rousseau’s general will, this common knowledge is not the sum of the contents of individual minds: it is a quasitranscendental entity that is nevertheless visible in the courtroom—in “the man in the street,” in the reasonable man, in the jury member who uses common knowledge to supplement evidence, and in the fairminded judge. Any study of the varied processes that the title of the series in which this book appears calls “the cultural lives of law” needs to take into account that new developments—such as the influence in law of certain scientific and technical knowledge practices—do not by any means threaten the persistence and robustness of forms of reasoning and governing ideals that are prescientific or simply nonscientific, and that deserve a more detailed analysis than simply being called “nonscientific.” Universal common knowledge, although necessary, is nevertheless not a sufficient condition for governance in most of the legal arenas studied here. When inquiring into urban disorders and disruptions of moral codes, law constructs—and deploys—administrative knowledges that confer on low-level state officials epistemological authority not only over law but over matters of everyday life. Administrative knowledges of disorder and vice cannot easily be deployed to sing the democratic virtues of law in the way common knowledge can; thus, as is seen in case studies in several chapters, this knowledge rarely gets named, despite its key role in numerous legal and policy arenas. The other key theme is indicated by the reiteration of the terms “lifestyle,” “community,” and “habit.” A key argument made throughout this book is that the governance of deviance and immorality cannot be studied exclusively with the binary opposition of act versus identity, sovereignty versus discipline, conduct versus status. In cases of both problem drinking and sexuality, and in respect to aboriginal status, the

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studies presented here show that the intermediate categories of “habit” and “lifestyle” are also very important, and may be becoming more important now that the expert disciplinary gaze that produced deep personal identities such as “homosexuality” and “alcoholism” is, to some extent, on the wane. Of course, classic homosexuals and alcoholics are still very much in evidence, in personal-experience accounts as well as in expert discourse. And aboriginality is often thought of as a deep psychic-cultural identity as well as a legal creation. But the fact that governing through habit and lifestyle is limited to certain areas at certain times by no means undermines my argument. In this book, as in other work, I have stressed that it is important to avoid generalizations about overall, epochal shifts in governance, concentrating instead on the creative and usually unplanned coexistence of contradictory modes of governance. Thus, for example, although identity-based governance persists both in law and everyday experience, I have shown that in many cases the identities in question are less “deep” than they used to be—more fluid, more eclectically constructed out of everyday practical or commonsense knowledges. Drinking can be and is often seen as a habit rather than a sin or deviant symptom (smoking, by contrast, seems now always to be viewed as an addiction, never a simple habit—which is one reason why this vice is not studied in this book). Even sexual activity, which is more closely tethered to the psy governance of human beings through “the deep self,” is regarded in some cases as a matter of habit—consumer and political habits, in the Pride Day cases. Habits and lifestyles occupy an ontological space that, as I argue in the introduction, is more “on the surface” than “deep down.” Governing urban disorder, managing sexual pluralism, and minimizing the risks of drinking through the tools provided by the machinery of habit and lifestyle is not necessarily more benevolent than governing under the aegis of psy expertise (as the analysis of the British Home Office 2000 white paper on licensing shows). But it does invite a consideration of the inadequacies of current theoretical resources. Among the suggestions for theoretical innovation made in this book, a key one is that socio-legal scholarship in English-speaking countries take the legacy of “police science” seriously. What U.S. law calls “the police powers of the state,” and which exists in British and Canadian law despite an absence of a similar term—powers usually exercised by municipalities and private-sector bodies licensed or otherwise authorized by the state, unified only teleologically through the motivating dream of a fully transparent, ordered, and virtuous polis—is by no means an anachronism or a continental oddity. As the proliferation of “new vagrancy” laws shows, the power to take positive measures to incite urban dwellers to civility and

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order is a major component of the neoliberal governance of urban space. Police powers have generally worked on spaces and activities, not persons, and so they have become useful in our present precisely because they do not require either deviant identities or criminal acts on which to operate. And because the project to create civility, transparency, and order positively in urban spaces is largely conducted by lowlevel administrative officials whose conduct is rarely scrutinized by either appeal courts or scholars, it can easily continue to exist and thrive alongside the better-known legal technologies of the rights-bearing subject. Legal inquiries into habits and lifestyles generally deploy and constitute knowledges that do not fit into the usual binary of expertise versus lay experience. The clues-based knowledge of human motives and pleasures developed by the morality-squad detective; the haphazard, semisociological knowledge of lifestyle deployed in the Gay Pride cases; the hybrid knowledge of sexual “propensity” invoked in the Clinton administration’s “Don’t ask, don’t tell” policy; the administrative knowledge of urban disorder accumulated by liquor inspectors in Ontario and by licensing magistrates in the United Kingdom; the judicial inquiries into “the Indian style of life” undertaken in adjudications of racially specific liquor prohibitions—these inquiries do not all deploy the same epistemology, but what they have in common is a strict avoidance of both scientific expertise and the everyday experience of those subjected to law. These hybrid, partly administrative and partly commonsensical knowledges are often deployed to authorize particular minor officials who lack professional qualifications. But sometimes the same knowledges appear as injunctions for the citizenry: “Common knowledge must enter the equation somewhere,” as one Canadian tribunal put it. Citizens of liberal democracies are usually thought of as the subjects of rights, including epistemological rights (informed consent, etc.). Rarely do we think of ourselves as the subjects of epistemological responsibilities. But as insurance-law scholars and analysts of neoliberal policing methods have already discovered, the duty to know and, in particular, the duty to foresee risks is a heavy burden indeed and one that, unlike professional knowledge, does not bring with it greater status and authority. The sociology of legal knowledges is a young and undeveloped field. In some ways it is not really a field, since studies by legal scholars rarely refer to the literature on the sociology of knowledge, and vice versa. It would thus be premature, and possibly ridiculous, to make grand concluding claims about how this particular book’s insights about the constitution of knowledges within and in the face of law contribute to “the field.” Some of my interlocutors would push me to engage in general theorizing about such abstractions as “postmodernity.” I would re-

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spond, however, that my research shows that a variety of actors, engaged in very different projects and promoting contradictory interests, are very capable of invoking and using postdisciplinary categories— such as “lifestyle”—without any thought about postmodern fragmentation. Looking at this situation, it seems to me more useful to document the evolving postdisciplinary tools for organizing social life and thinking about social relations that are being developed as we speak, usually below the theoretical radar, instead of lazily resorting to analytical short circuits such as “postmodernity.” One reason for the silence about postmodern theory in this book is that it would be silly to expose law’s dream of a universal common knowledge only to fall into another universalism by claiming that we now live in postmodernity, in risk society, the information age, or in some other unified world. An important lesson I have learned from reading Nietzsche, Foucault, Latour, and Deleuze is that it is best to avoid statements about where “we” in general are today, since there is no such thing as “us,” never mind “the world.” There are numerous flows of power and knowledge, but there is no meta-authority coordinating them. What happens in the formation of power/knowledge tools, such as the legal technologies studied in this book, is that actors manage to seize on several of these flows temporarily and to create an assemblage whose half-life can never be predicted from the outset. Analyses of how we govern ourselves and how authorities govern us need to be theoretically informed if they seek to contribute to general debates about how best to think about our present: but they cannot use theory as a substitute for concrete analyses. Understanding the politics—including the knowledge politics—of the situated presents among which each of us circulates requires a fresh start every time.

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Index aboriginal peoples. See Indians administrative knowledges, 20, 52–53, 168, 170 adult businesses: administrative knowledge and, 52–53; City of Los Angeles v. Alameda Books Inc. and, 32; definition of, 50; exercise of police powers by zoning officials and, 51–52; free speech issues re, 49–50; municipal zoning regulation of, 30, 31, 32; police targeting of, re “specified sexual activities,” 50; as “urban ills/blight,” 48; U.S. regulation practices re, 48–53 AIDS, 88–89, 135, 138 Alameda Books Inc. case. See adult businesses alcohol. See Indians; intoxication; licensing Alcohol and Gaming Commission of Ontario: breathalyzer tests and, 177; evidentiary rules of, 172, 177; list of intoxication indicators of, 173–74; judicial review of decisions by, 172–73; liquor inspectors of (see liquor inspectors); responsible service policy of, 174; SmartServe program of, 182 alcoholism: and interdiction list, alcoholics on, 214, 216; intoxication vs., 175 antisocial conduct, 36 Bailey, Robert, 133 Baudrillard, Jean, 88–89 Bauman, Zygmunt, 126 bawdy-house laws: criminal status of, 96– 97; indecent acts and (see indecent acts); prostitution and (see Remington’s case; sado/masochism trial) Bedford case (dominatrix), 74–82 Bertillon, Alphonse, 63 bisexuality, 113–14, 137–38 Blacks: homophobia and, 105; identity and, 104; suspect class status of (see suspect class status); white/Black distinction and, 204 bodies: desire and, 25; fragmentation of, 54–55; humanist notions re, 57; legal

regulation of, 54; money and, 41; sexuality as defining, 25; unity of, 57 body parts: morality squad surveillance and, 54; nonsexualized parts of, 56 Bourdieu, Pierre, 26, 169, 191 Bowers v. Hardwick, 95–96, 107–11, 128 breasts, female. See indecent exposure buggery law, 29, 59 Butler, R. v., 31, 34–39, 58 causality, 14 Charter of Rights and Freedoms: equality rights and (see equality rights); gender equality provisions of, 38–39; homosexuals and, 30; Indian Act and, 204; infringement of, and justification analysis, 98–99 Clinton, Bill, 61 clues: “case history” epistemology of, 64; detective work and, 63; forensic workers and, 63; truth as based on, 19 Cole, Simon, 62 Colorado Amendment 2 case: attack on antidiscriminatory policies and, 102–3, 108–11, 121; Evans v. Romer and, 102–3, 117–18; opinion poll studies and, 125; Romer v. Evans and, 121, 124–25, 127–28 Colquhoun, Dr. Patrick, 151, 154, 158, 160 common knowledge, 21, 168, 169, 224– 25; administrative knowledges and, 170; use by judges, 171; reasonable person standard of, 170; “universal man” standard and, 170–71, 179, 225 community. See gay community community standards test: Black music and, 46–47; gay community as defined community and, 43–45; evidentiary source of, 45–47; expert opinion evidence re, 44–45; local context basis of, 43; multiculturalism and, 47; national community basis of, 44–45; rap music performance and, 46–47 crime prevention programs, 161

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critical legal thought: functionalism and, 28–29; sexual repression hypothesis and, 28 cultural studies, 22–23 culture, minority, 103 culture wars. See gay lifestyle Decter, Midge, 129–30 Deleuze, Gilles, 32, 57, 89 detective fiction, 63 detective work: clues-based epistemology of, 63 Poe discussion of, 13 discrimination (see also human rights law): Colorado case and (see Colorado Amendment 2 case); against homosexuals, 30, 113; against Indians, 200–201, 205; oppression test for, 124; sexual orientation and, 67–68, 108–10, 115– 17; visibility test for, 123 disorder, 163 drugs, policing of illicit, 183 drunkenness. See intoxication Drybones, R. v., 204–5 effects: interests vs., 11–12; surface nature of, 12–13 Ellickson, Robert, 142n equality rights (see also human rights law): analogous grounds of discrimination and, 100; historically disadvantaged groups analysis and, 99; of non-citizens, 99; non-privileging of discrimination types and, 100, 101 evidence: of community standards, 45–47; of experts (see experts); re gay lifestyle, 135; of indecency and immorality, 55; re Indian land claims, 194; re Indianness, 208–9; interpretation of, 58; of intoxication (see intoxication); use of law in, 5, 19; medical, 68–69; re sexual orientation, 115 experts: evidence of, re community standards, 44–45; —, re intoxication, 182, 187–90; —, re sexual orientation, 115; forensic workers as, 63; limited domination of, 3; role of, in law, 23; welfarestate experts, 65 expression/speech, freedom of, 33, 34, 49–50 First Amendment, 33; “performances” and, 41

forensic gaze: epistemology of, 62; interpretation of evidence and, 58; as “male” gaze, 55, 57; nonsexualized uses of, 55; pornography and, 55; scientific gaze and, 64 forensic science, 64 forensic techniques, 64 forensic workers/technicians: as “clue” experts, 63; focus of, 64; low-status functions of, 62 Forrester, John, 65n Foucault, Michel: analyses of, 12; his comments re family values, 139; force vs. power distinction of, 1n; knowledges analysis and, 2–3; and prescientific knowledge formats, analysis of, 84–85; and sexuality, analysis of, 86 fragmentation, pornographic, 57 free speech, 49–50 Freud, Sigmund, 63 functionalism, 28–29 gay agenda, 125–27 gay brain theory, 122–23 gay community: meaning of “community” and, 138; Pride Day human rights cases and, 130–37; as sociocultural object, 223; urban “villages” aspect of, 133 gay gene debate, 121–22 gay identity, 17 gay liberation, 112 gay lifestyle: Colorado Amendment 2 case and, 125–26; community nature of, 129–30; consumer activity as part of, 138; “degeneration” myth and, 129; and group habits, as constituted by, 17; meaning of “lifestyle” and, 128, 138; organizational activities of, 133, 134; “reasonableness” of, 134; right-wing denouncements of, 129; as social insult, 128; “style of life” and, 138; as urban lifestyle, 118 gay marriage, 97 gay networks, 139 gay organizations, 133–34 Gay Pride. See Pride Day gay scientists, 118–23 gay strip bars. See community standards test; masturbation for pay; Remington’s case gays. See homosexuals

INDEX Graat, R. v., 187–90 Green, Dr. Richard, 119–21 Greenspan, Edward, 43, 67 habit, 16–18, 26, 226–27, 145–46 Halley, Janet, 92, 108 Hamer, Dr. Dean, 121 harm. See risk of harm test hate propaganda/speech, 34–35, 99 Hirschfeld, Dr. Magnus, 118–19, 122–23 Holmes, Sherlock, 63, 65n, 222–23 homophobia: and anti-Semitism, comparison with, 126; of Blacks and Hispanics, 105; Colorado Amendment 2 case and, 125–26; sodomy/buggery law and, 59 homosexual identity (see also sexual orientation): described, 17; Foucault’s analysis re, 86–87; fragmenting of, 16–17 homosexual sodomy. See sodomy law homosexuality: as “benign variation” paradigm, 118; as immutable characteristic, 120; as lifestyle choice, 124–30; nature vs. nurture debate and, 120–21; as “nontraditional” orientation, 118; as psychiatric illness, 112; as sexual deviation, 112 homosexuals (see also lesbians; sodomy law): Charter of Rights and, 30; as disadvantaged cultural minority, 116, 128; discrimination against, 30, 113; as minority culture, 103; political powerlessness of, 128; U.S. military policy re, 92–94, 108 human rights law: Canadian (see equality rights); ethical claims of, 135; “lifestyle” discourse of, 17; Pride Day cases, 130–37; “reasonable person” position in, 136; sexual orientation and, 115– 17; U.S. (see suspect class status) Hyde, Alan, 25, 56 identity: act/identity dialectic re, 91–92, 108, 109, 124; Black, 104, 204; gay (see homosexual identity); gender, 119– 20; Indian (see Indianness); multiculturalism and, 82–83; sexual orientation as, 114; and stability vs. fluidity, notions of, 103 indecent acts: community standards test for (see community standards test);

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criminal status of, 96–97; indecent exposure (see indecent exposure); masturbation (see masturbation for pay); performances (see indecent performances); “tendency to corrupt morals” test for, 43 indecent exposure: attitudinal harm and, 58; Jacob, R. v. and, 39–40; prostitutes and, 40–41; and risk of harm test, application to, 39–40 indecent performances: as causing “attitudinal harm,” 42; First Amendment law and, 41; risk of harm test and, 41–43 Indian Act: effect of Bill of Rights on, 204–5; effect of Charter of Rights and Freedoms on, 204; liquor prohibitions of, 195, 197, 206; “persons and Indians” clause of, 210, 212; prosecution of whites under, 210; validity of racespecific prohibitions of, 196 Indian agents, 211 Indian bands: use of Indian list and, 217; liquor governance by, 194 Indian list. See interdiction list Indian spaces: governance of, 204–9 Indian women, 212 Indianness: “appearance” as indicator of, 203; colonial knowledges re, 195; forms of evidence for, 208–9; history vs. tradition and, 208; identifying, 199; inquiries re, 202–3; political/cultural facts as indicators of, 203; responsibility for knowing, 199, 202; traditional life analysis and, 196, 207–9, 224; white knowledge of, 201–2 Indians: definitions of, 193; discrimination against, 200–201, 205; federal jurisdiction over, 197, 206; identity and (see Indianness); and intoxication on reserve, offense re, 205; and land claims, evidentiary approach to, 194; access to liquor and, 197–99, 211, 212; precontact forms of life and, 196; regulation of, through provincial liquor statutes, 206–7; and sobriety, political meaning of, 196; susceptibility to intoxicants and, 195; “style of life” and, 17 interdiction list, 213–20; alcoholics and, 214, 216; breach of order and, 215; confusion re, 215; effectiveness of, 216; requests by family members and, 214;

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interdiction list (cont.) hearings re inclusion on, 218; Indians on, 217; Liquor Licensing Board power to issue orders and, 215; purposes of, 216; rights discourse and, 219; voluntary requests and, 214 intoxication: ability to drive and, 189; alcoholism vs., 175; as common knowledge, 169; as criminal defense, 190; as disease of the will, 25–6; expert vs. non-expert evidence re, 182, 187–90; factual observation vs. opinion and, 185–90; “field sobriety tests” for, 187; “horizontal syntagmus test” for, 18; Indians and (see Indians); duty re knowledge of, 184–85, 192; personal experience of, 183; police evidence re, 186–87, 189–90; servers’ determinations of, 182, 191; signs of (see intoxication indicators) intoxication indicators (see also liquor inspectors): blood-alcohol testing, 176, 177; breathalyzer tests, 176, 177; class considerations and, 181; as common knowledge determination, 178–79, 191; cultural/ethnic considerations and, 174– 76, 179–81; lists re, 174–75, 177 Irvine, Janice, 102–4 James, William, 11n juridical field, 26–7 knowledge: as capital/resource, 169, 191; common (see common knowledge); duty to know and, 21–22, 169–72, 192; formats of, 23; of intoxication (see intoxication); sociology of, 192 knowledges: administrative, 20, 21, 52– 53, 168; ethical, 135; Foucault’s analysis of, 2–3; high-status, 2–3, 62; hybrid, 3, 20, 22; legal (see law); lowstatus, 3, 22; popular, 3 Kulturkampf, 127 Latour, Bruno, 8–9, 31–32 law: administrative, 20; autopoiesis theory re, 6; epistemological authority re, 23 epistemology of, 3, 6, 15; use of evidence and, 5, 19; role of expert witnesses and, 23; context of facts and, 6; as set of knowledge practices, 26; knowledge pro-

cesses of, 3–4, 19, 227; as site of power relations, 1; regulatory, 20; sexual regulation and, 29; sociology of, 2; truthseeking dimension of, 1, 4–11 legal complexes, 10 legal fictions: “law” as source of, 10; reasonable person, 21; re sexual orientation, 10 legal neutrality, 11 legal thought. See critical legal thought lesbians: brains of, 124; pornography and, 38; as sexual deviants, 78; writing on sex and law, 123 LeVay, Simon, 122–23 Lewinsky, Monica, 59, 65–66 liberalism, 141–44 licensing: in Britain (see pub licensing); in Canada (see liquor licensing); coercive effect of, 148; employee knowledge and, 168; as form of indirect governance, 166; as technique of liberal governance, 144; liquor (see liquor licensing); of professionals, 169; pub (see pub licensing); lack of “state facts” in, 165; limited use of statistical knowledges and, 163–65; types of, 144 lifestyle: gay (see gay lifestyle); as habit, 18, 26, 226–27 liquor inspectors, 177, 182 liquor licensing. See Alcohol and Gaming Commission of Ontario; Ontario Liquor Licensing Board Little Sisters case, 44, 97n Mackinnon, Catherine, 35–36 marriage. See gay marriage; same-sex spouses masturbation for pay: faked masturbation by women and, 68; male vs. female, 68–70; physical health risks and, 69; sexual orientation discrimination and, 67–68 morality squads, 15 Moran, Les, 54 multiculturalism: community standards test and, 47; avoidance of identity discourse and, 82–83; moral regulation and, 62; sexual orientation and, 115–17 municipalities: regulatory powers of, 142, 160–61; zoning regulation by, 30–32 murder mysteries. See detective fiction

INDEX Nietzsche, 12, 13n, 14 Novak, Bill, 142, 159 NWA rap group, 47 obscenity law (see also adult businesses; pornography): Butler, R. v., 34–39, 59; common knowledge test and, 31; community standards test and, 30, 31, 37; degradation/dehumanization test and, 34–35; legislative history (Canada) of, 34; movies and, 31; offensiveness and, 33; rationale for, 33; risk of harm test (see risk of harm test); static nature of, 29; Towne Cinema Theatres Ltd., R. v., 34, 37; undue exploitation of sex and, 35; harms to women and, 33 Ojeda, People v., 186–87 Ontario Liquor Licensing Board; interdiction list of (see interdiction list); policy towards Indians and, 198–202; intoxication list of, 173 orientation. See sexual orientation Phelan, Shane, 126 Poe, Edgar Allan, 13 Poirot, Hercule, 65 police officers (see also sado/masochism trial): avoidance of identity discourse by, 82–83; Indian as, 209; morality squad, 15; sexual orientation bias of, 69–70; undercover, 54, 209 police powers (see also police science): as form of indirect governance, 166; exercised through local agencies, 165; state exercise of, 160n police science: challenges to, 143; epistemology of details and, 158–63; goal of, 141; liberal government use of, 143– 44, 158n; and licensing (see licensing); list formats of, 159–63 police work: nonscientific facts and, 18; scientific domination of, 18 Polizeiwissenschaft. See police science Poovey, Mary, 164 porn shops. See adult businesses pornography: hard male body trope of, 70–73; lesbian, 38; harms to women and, 33–34, 36 postmodern theory, 228 pragmatism, 11

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Pride Day, human rights cases re: Christian group opposition and, 131–32; ethical arguments and, 135; expert evidence at, 135; FLAG brief and, 133; Fredericton case, 131–36; legal arguments and, 132; lifestyle endorsement argument and, 132; Ontario mayoral proclamations and, 130–31; reasonableness of pro-gay argument and, 135–36; sociopolitical context of, 134, 223 prostitution. See Remington’s case; sado/ masochism trial psychiatry: “case history” method of, 64; decline of authority of, 62, 65; homosexuality as illness and, 112 Psycho, 63 pub licensing: Central Control Board (Liquor Traffic), 156, 162; cultural habits and, 145–46; effect of Defence of the Realm Act (DORA) and, 155–56; focus of, 148–49; gin selling and, 152–53; history of, 151–57; innkeepers’ law and, 150; control of intoxication and, 147; powers of magistrates and, 150– 53; “national efficiency” rationale for, 155–56; public order as rationale of, 145, 157; revenue-gathering features of, 153; state control vs., 145–47; state spies vs., 145, 148; as “time, place and manner” regulation, 148–49; white paper (2000) re, 149–50, 157, 163 queer science, 119–23 queer studies, 86 queer theory, 89 race, 101–7, 120 racial identity: of Indians (see Indianness); white/Black distinction, 204 Rainbow curriculum controversy, 101–4 rape laws/trials: fetishizing of penis and semen and, 59; pornographization of female bodies and, 55 realist epistemology, 7, 10 reasonable person test, 21, 170 Reich, Charles, 144 relativism, 8 Remington’s case (see also community standards test; masturbation for pay): defense arguments in, 67–70; medical

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Remington’s case (cont.) evidence at, 68–69; testimony re semen ejaculation, 72–73 Remington’s strip club, 66–67 Renaissance knowledge/thought, 84–85 Rich, Adrienne, 225 risk of harm test: “attitudinal harm” and, 42; Butler, R. v. and, 31, 35–39; Charter of Rights gender-equality provisions and, 38–39; community standard of, 42–43, 45; feminists’ view of, 35; in general, 30; meaning of “harm” and, 30–31, 39, 42–43; indecent exposure and, 39–40; moral content of, 62 Romer v. Evans, 102–3, 117–18, 121, 124–25, 127–28 Rush, Sharon, 123 sado/masochism trial: commonsense psychology and, 77, 78–80; customers as sexual deviants and, 75, 76, 77; dominatrix and, 75, 82; forensic psychologist testimony in, 79; and investigating officers, dis-identification of, 74–75; —, imitation and practice of s/m activities by, 80–82; —, participation in s/m activity of, 75; —, “rowdyism” of, 80– 81; —, sports pain analogies of, 76; —, testimony of, 74; and masturbation, significance of, 75; medical-disorder nature of s/m activities and, 78; pain vs. pleasure and, 80; psychological nature of, 78; presence of semen and, 76–77, 78; sexual nature of s/m activities and, 77– 78; voyeuristic comments of trial judge and, 77 same-sex spouses, 97 Scalia, Justice, 110, 127 semen: character of, 56; as chief marker of male sexuality, 56; presence of, as sign of sex, 61, 62, 68, 70 sexual activity: and moral judgments, contemporary avoidance of, 82–83; psychological element and, 77 sexual deviance: lesbianism as, 78; s/m activities as (see sado/masochism trial) sexual orientation: act/identity dialectic re, 91–92, 108, 109, 124; as analogous ground of discrimination, 100; burden of knowledge re, 136–37; Canadian law re (see equality rights); commonsense

meaning of, 115, 117; community practices as defining, 87, 96, 124; cultural indicators of, 93; as deep identity, 114; discrimination and, 67–68, 108–10, 115–17; expert-witness evidence re, 115; fruitfulness of studying, 91; gender identity as root of, 119–20; hormonal theories of, 123; as legal construct, 114; meaning of, 113; multiculturalism and, 115–16, 117; meaning of “orientation” and, 112–13; as postsexual, 110, 139; “propensity” analysis and, 92; U.S. law re, 117–18 sexual repression, 29 sexuality: biomedical knowledges of, 122; Foucault’s analysis of, 86–90; impermanence of knowledge apparatus re, 88; reality effects of, 89; sexual pluralism and, 90; speech as sexual act and, 94 Silence of the Lambs, 63 Smith, Adam, 143, 158 sodomy law, 29; Bowers v. Hardwick, 95– 96, 107–11, 128; Christian conservative attachment to, 91; in Georgia, 95–96; homophobia and, 59; homosexual sodomy, 107–8; privacy rights and, 95 St. Patrick’s Day parades, 93 Starr, Kenneth. See Starr Inquiry/Report Starr Inquiry/Report: mandate of, 59; physical evidence of sexual relationship and, 60; presence of semen and, 61; sex vs. sexual intercourse and, 61–62 Straw, Jack, 149 strip bars. See masturbation for pay sumptuary laws, 141 Sunstein, Cass, 33, 124 Supreme Court of Canada, 37 suspect class status: and Blacks, privileged status of, 100–101; —, as “truly victimized,” 102; devaluation issue and, 131; hierarchy of rights basis of, 104–7; homosexuals and, 98, 107; racial basis of, 100–107 systemic gender harm, 35–36 Thomas, Ronald, 64 transgendered/transsexual people, 113, 137–38 truth (see also law): approaches to, 8–10; clues-based, 19; pragmatism and, 11; relativist vs. humanist approach to, 8

INDEX truth effects, 7–8 2LiveCrew, 46 undercover police officers, 54, 209 urban disorder, 163, 168 urban lifestyle, 118 vice: as bad habits, 15–18; definition of, 16; deviant identities and, 16 vice squads, 15 violence against women, 36–37 Vriend v. Alberta, 115–17

welare-state experts, 65 White, Edmund, 138–40 Wilson, Madam Justice Bertha, 37 women: pornography and (see pornography); sexual pleasure of, 65–66; violence against, 36–37 Women’s Legal Education and Action Fund (LEAF), 35n zoning. See adult businesses

247