Mariano Croce

Homonormative dynamics and the subversion of culture

Queer critics talk more and more about a normalization process whereby early lesbian and gay struggles against traditional values and institutions are being replaced by the pursuit of inclusion within mainstream society. The ‘assimilation’ of same-sex practices, critics contend, lowers the critical potential of homosexuals’ claims and marginalizes other less acceptable forms of sexualities. The present article contributes to this literature by tracing the roots and dynamics of normalization. It makes the claim that heteronormative categories infiltrated homosexual culture well before the spread of neoconservative gay movements and produced inner distinctions intended to exclude those who did not fit intergroup classifications. It then maintains that this analysis casts some interesting light on the current quest for gay rights, and in particular for same-sex marriage. By doing so, this article aims to tackle the broader question of how to produce societal changes able to circumvent rearguard reactions from the dominant culture.

Ethical substance and the coexistence of normative orders : Carl Schmitt, Santi Romano, and critical institutionalism

Abstract This article argues for an interactional conception of law, within an institutionalist legal perspective. Through a comparison between Carl Schmitt’s and Santi Romano’s concepts of law, we underscore (in (Section 1) the relevance and the role of an ethical residue in the understanding of the relationships between the legal order and society. Although both Schmitt and Romano are to be considered as institutionalist thinkers, in that their concepts of law portray the positive norm as a product of a previous social context, their final conclusions are very different. Taking up the outcomes of such a comparison, we elucidate (in Section 2) the pivotal role of interaction within the norm-making process. In doing this, we seek to justify the four main tenets which underpin our legal conception. (a) Law is made up of a set of rules which are the conditions of possibility for durable forms of interaction. (b) A rule is a condition for the successful accomplishment of an interaction, that is to say, the condition without which the interaction would not achieve its intended aim. (c) An institution is a typified set of reiterated practices. (d) Positive law is the reflexive outlining of the effective and institutionalised rules. These steps allow us to outline the framework of a ‘critical’ institutionalism (in Sections 3–5). Critical institutionalism, we argue, is able to integrate the interactional/ institutionalist theory with the main results of the legal pluralism paradigm. It achieves this while avoiding the weakness of ‘new institutionalism’, represented especially by MacCormick and Weinberger, that it cannot explain why interactional practices come into existence and produce institutions.

A Practice Theory of Legal Pluralism: Hart's (Inadvertent) Defence of the Indistinctiveness of Law

This article claims that H.L.A. Hart’s theory may be regarded as a sound vindication of what today is known as legal pluralism. In short, Hart’s practice theory of norms attests to the fact that state law is only one system of rules among many others, and that it does not exhibit any distinctive feature that may distinguish it from those others. I will depict this as an inadvertent but extremely valuable outcome of the practice theory. Indeed, Hart’s battle against the claimed connection between law and coercion and his firm conviction that legal normativity should be understood in light of the broader phenomenon of social normativity make his practice theory of rules a sound and fertile vindication of legal pluralism as a theoretical approach to legal phenomena. As a result, even though Hart was a legal centralist and a legal monist, his theorizing ends up dismantling the identity between the general phenomenon of law and the law of the state. I will proceed as follows: I will first look at the contentious issue of the relation between law and coercion by examining how two prominent legal scholars, Hans Kelsen and E. Adamson Hoebel, came to the conclusion that the distinguishing mark of law is coercion (sec. 1). This analysis will be instrumental in demonstrating that Hart failed to grasp the relevance and salience of the relation between law and coercion, and in particular, the peculiar role Kelsen and Hoebel attributed to the latter (sec. 2). I will argue that Hart’s discomfort with the emphasis on the notion of coercion was due not to the nature of this notion as such, but to the distortive effect its overemphasis had exerted on positivist legal theorizing. I will claim that Hart’s most insidious adversaries were two (at the time prominent) philosophical and jurisprudential streams, namely, behaviourism and emotivism (sec. 3). I will go on to say that Hart’s arguments against these adversaries are well addressed but inadequate, and will try to reinforce them by drawing on a Wittgensteinian view of practices (sec. 4). I will conclude by showing that the consistent outcome of a “reinforced” practice theory is a highly pluralist view of law (sec. 5).

The Symbolic Power of Legal Kinship Terminology An Analysis of ‘Co-motherhood’ and ‘Duo-motherhood’ in Belgium and the Netherlands

This article provides a theoretically grounded critical analysis of how the Belgian and the Dutch legal systems are addressing new kinship formations through the production of new legal terminology. As Belgium and the Netherlands are at the forefront of legal recognition of minority sexualities and emerging forms of relatedness, statutory Belgian ‘co-motherhood’ and Dutch ‘duo-motherhood’ for ‘lesbian parents’ (both enacted in 2014) cast some light on how European state family laws and policy frameworks are likely to evolve vis-à-vis the multiplication of new family formations. After tracing the developmental trajectory of these new family law categories and their connection to ordinary language categories, the article claims that legal labels are hardly merely descriptive, for they exert contradictory effects of recognition, regulation, normalization and exclusion. By foregrounding the potential frictions between ‘kinship-in-action’ and ‘kinship-in-the-books’ and the possible drawbacks of top-down statutory interventions, the article contends that, when based on conventional family categories, legal kinship terminology runs the risk of foisting pre-given narratives upon emerging kinship formations, which would eventuate in the normalization of alternative realities. The article concludes by drawing a parallelism between partnership labels and parenthood labels and by advocating the need for deeper ethnographic research before new legal kinship labels are crafted.

Secularization, Legal Pluralism, and the Question of Relationship-Recognition Regimes

Abstract In this article I contend that the re-emergence of religion in Western liberal states is a feature of a much broader phenomenon, namely, the re-establishment of legal pluralism whereby various social actors claim to be the legitimate producers of their own law. To prove this, I first offer an account of secularization as the successful attempt of modern states to dismantle a legal-pluralist system. Based on this, I argue that the reviviscence of religions is the reviviscence of their practical side: religious practices tend to be perceived by religious group members as providing guidance for conduct, one that challenges the rules of the state legal order and its monistic structure. Finally, by exploring the issue of same-sex union recognition, I defend the claim that, in a truly post-secular society, the state should allow a multiplicity of relationship-recognition models that reflect and meet different interests and needs.

A sense of self-suspicion: global legal pluralism and the claim to legal authority

Legal pluralism has become common currency in many contemporary debates on law and globalization. Its main claim is that a form of global legal pluralism represents both the most accurate description of law in times of globalization and the best normative option. On the descriptive level, global legal pluralism is considered more reliable than state-based accounts. On the normative level, global legal pluralism is understood as a possibility to open up the legal realm to previously unheard voices. This article assesses these claims against the background of classic legal-pluralist scholarship. After reconstructing the emergence of global legal pluralism and then examining its epistemic and normative versions, the last two sections identify the shortcoming of this approach by underlining the absence of what the authors call ‘a sense of self-suspicion’ in drawing the map of legalities in the global sphere. The main argument put forward is that global legal pluralism is oblivious of a few key insights offered by the founding fathers of classic legal pluralism.

Desiring What the Law Desires: A Semiotic View on the Normalization of Homosexual Sexuality

Critics of the same-sex rights discourse claim that recent struggles for sexual equality is fostering a process of normalization that exerts both heteronormative and homonormative effects. This article follows this clue and seeks to identify some of the factors and the channels of the “transformation of desire” which is currently affecting the homosexual imagery. By looking at some key judgments both in the U.S. and Europe, it explores how lesbians, gays, and bisexuals acquire socio-political visibility and how the latter impacts on them. By capitalizing on a semiotic view of law, the article explains how the access to the legal field has forced lesbians, gays, and bisexuals to frame the theme of homosexuality in conformity with a categorial grid typical of traditional kinship models.

All Law is Plural. Legal Pluralism and the Distinctiveness of Law

The present article pursues two basic aims. Firstly, it canvasses the idea that there is no normative difference between state law and other kinds of law, such as customary law or religious law, and that eventually there is not a clear dividing line between the various normative fields of social reality (from interactions of everyday life to legal activities). The author explores this ‘panlegalistic’ paradigm by integrating the analysis made by Gordon R. Woodman about the nature of customary law with a Wittgensteinian reading of the ‘practice theory of norms’ by Herbert L.A. Hart. After emphasising the conceptual advantages of this approach, the article puts forward an hypothesis meant to unravel a conceptual impasse which it incurs, that is, the impossibility of explaining what differentiates legal from social normativity. To this end, the author suggests that law should be seen as a trans-sectional and insulated venue, separate from everyday life, in which everyday reality can be renegotiated and rephrased by means of a special knowledge (usually mastered by a circle of experts) and a rigid set of conceptual categories.

From gay liberation to marriage equality: A political lesson to be learnt:

This article deals with the issue of resignification to advance a hypothesis on the way in which social practices are transformed with recourse to the language of institutions. It first discusses the transition from gay liberation to same-sex marriage equality by exploring the trajectory of homosexuals’ rights claims. The article continues by providing a theoretical interpretation of what brought this shift about, that is, what the author calls a movement ‘from the street to the court’: in both civil law and common law jurisdictions, legal means are increasingly being used by individuals and groups to make their claims audible to political institutions and to society at large. Then, an analysis is offered of the shape that social struggles take when socio-political claims are articulated with recourse to the legal language. The conclusion is that reliance on the law as a device to achieve political goals and construct same-sex group identity risks producing but a feeble resignification of the conventional heterosexual matrix. In light of that, a more effective way to defy this matrix is to create awareness of what is gained and what gets lost in becoming legally visible.

Whither the state? On Santi Romano’s The legal order

ABSTRACT This essay foregrounds the relevance of Italian jurist Santi Romano’s theorizing to today’s political and legal debates on the relation between state and non-state laws. As Romano’s classic book L’ordinamento giuridico (1917–1918) has finally been translated into English, the Anglophone readership can take stock of one of the most enlightening contributions to institutional thinking in the last centuries. Romano put forward a theory of legal institutionalism that has legal pluralism as a basic corollary and contended that the legal order is naturally equipped to temper and overcome conflicts between bodies of law. The present contribution argues that this approach unravels the riddles of recent multiculturalist paradigms and provides invaluable insights on the way the state could and should manage the conflicts between competing normative orders that lay claims to legislative and jurisdictional autonomy.