Table of Contents

A Feminist Agenda for Gay Men (Or: Catharine Mackinnon and the Invention of a Sex-Based Hope)

Shannon Gilreath, Wake Forest University - School of Law

The Normative Jinx

Christoph Kletzer, King's College London – The Dickson Poon School of Law

Playacting: A D'Var Torah on Parshat Hukkat

Perry Dane, Rutgers Law School


LAW, NORMS & INFORMAL ORDER eJOURNAL

"A Feminist Agenda for Gay Men (Or: Catharine Mackinnon and the Invention of a Sex-Based Hope)" Free Download
Law and Inequality: A Journal of Theory and Practice, Vol. 35, No. 2, 2017

SHANNON GILREATH, Wake Forest University - School of Law
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In this Article, I concentrate on two main themes: (1) I use the work of Professor MacKinnon and her colleague Andrea Dworkin to critique the destructive role of pornography in gay men’s lives, and (2) I use this theory to expose the dangerousness of the poststructuralist theoretical project generally named “queer theory? when it is offered as an explanation of our lives and as a tool for “liberation.? I aim to show just exactly what its engagement with reality on a contingency basis only (making it an antithesis of feminism) costs. Of course, queer theory and queer legal theory are not monoliths. Not all work identifying with queer theory or as queer aligns itself with heterosexual male supremacy in the ways I critique in this essay. However, much of, if not most of, queer theory and queer legal theory shares the characteristics I critique below.

Engaging both pornography and queer theory simultaneously as I do here makes sense, since queer theory emerged, as Professor Janet Halley has said, principally as a line of defense against Professor MacKinnon’s recognition of pornography as a violation of civil and human rights.4 Professor Halley’s supposition about the nexus of queer theory and pornography in legal theory echoes, as do many of her primary points, the work of Judith Butler. Butler claimed, as Halley would go on to do, that feminist critique of pornography is itself an act of sex discrimination — a practice of sexual subordination — problematically entrenching gender norms. In this upside-down postmodern thinking, pornography is a/the solution to the problem of gender, not a primary engine of the gender binarism that enslaves us. The gay liberation alternative to queer theory’s madness is Professor MacKinnon’s feminism — which is to say: sex equality feminism: FEMINISM UNMODIFIED. It is, in my view, essential that the gay agenda be a feminist agenda. Professor MacKinnon’s feminism made it possible for survivors of pornography to be heard. Her work made it possible for pornography’s potent male supremacy to be challenged, even by gay men. It made it possible for me to say what it is necessary to say in this context as a gay man for gay men.

"The Normative Jinx" Free Download
Oxford Journal of Legal Studies

CHRISTOPH KLETZER, King's College London – The Dickson Poon School of Law
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In this article I present and defend the claim that law and morality cannot be considered to be valid simultaneously. This claim is the result of the combination of two theses, normative monism and legal/moral incompatibilism. The first thesis maintains that we can only make sense of norms if we consider them to be part of one normative system. The second thesis claims that law and morality cannot form part of one normative system. The result of the combination of both theses produces what I call the normative jinx: if we take law to be valid, then there is no moral point of view from which to assess the law; if we consider morality to be valid, there cannot possibly be valid law that could be the object of moral assessment.

"Playacting: A D'Var Torah on Parshat Hukkat" Free Download

PERRY DANE, Rutgers Law School
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Some historians have argued that one of the great theological innovations of the early Rabbis was to understand much of halakha as a form of spiritual discipline rather than a reflection of cosmic metaphysical reality. This view of halakhic nominalism has powerfully influenced at least major strains of the Jewish legal imagination writ large. And one possible upshot of that sort of approach is to understand the observant Jewish life as, in some sense, a form of "playacting." But understanding halakhic observance as playacting does not reduce the responsibility of halakhically-committed Jews, it only deepens it. For observant Jews to admit that they are acting in a play is no excuse for them to be sloppy actors. For the Rabbis also insisted that Jews have a duty to follow the script, to be authentic and convincing actors in the drama of Jewish religious life. They need to be actors, but darn serious actors.

This short talk further explores the metaphor of playacting. It distinguishes the ritual script and the moral script and emphasizes the importance of navigating their complex relationship. It also widens the lens to a brief discussion of the larger script of human life. In that context, the playacting metaphor must be read to accommodate the divine gift of human free will. In a certain sense, God is the author, or director, or stage manager, or critic, of a single-performance live show, with little in the way of rehearsal and no retakes. It can go well. And it can also go badly. As C.S. Lewis put it, "Of course God knew what would happen if [human beings] used their freedom the wrong way: apparently, He thought it worth the risk."

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This eJournal distributes working and accepted paper abstracts concerning the interaction of formal and informal order. Topics include social and group norms, conventions, customs, customary law, folk law, legal pluralism, private organizational rules, civil society, self-enforcing contracts, informal sanctions (such as gossip, shame, and guilt), self-help (including feuds), and the origins of law and legal institutions.

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Advisory Board

Law, Norms & Informal Order eJournal

LISA E. BERNSTEIN
Wilson-Dickinson Professor of Law, University of Chicago - Law School

JOHN BRADFORD BRAITHWAITE
Australian Research Council Federation Fellow, Australian National University (ANU) - Research School of Social Sciences (RSSS), School of Regulation & Global Governance (RegNet)

ROBERT C. ELLICKSON
Walter E. Meyer Professor of Property and Urban Law, Yale Law School

SALLY ENGLE MERRY
Marion Butler McLean Professor in the History of Ideas, Wellesley College - Department of Anthropology

DAN M. KAHAN
Elizabeth K. Dollard Professor of Law & Professor of Psychology, Yale University - Law School

PAUL G. MAHONEY
David and Mary Harrison Distinguished Professor, University of Virginia School of Law

PHILIP N. PETTIT
L.S. Rockefeller University Professor of Politics and Human Values, Princeton University - Department of Political Science, Australian National University (ANU) - Research School of Social Sciences (RSSS)

ERIC A. POSNER
Kirkland and Ellis Professor of Law, University of Chicago - Law School

ERIC BENNETT RASMUSEN
Dan and Catherine M. Dalton Professor, Indiana University - Kelley School of Business - Department of Business Economics & Public Policy

CHRIS WILLIAM SANCHIRICO
Samuel A. Blank Professor of Law, Business, and Public Policy, University of Pennsylvania Law School, University of Pennsylvania Wharton School - Business Economics and Public Policy Department

STEVEN SHAVELL
Director, John M. Olin Center for Law, Economics, and Business, Samuel R. Rosenthal Professor of Law and Economics, Harvard Law School, National Bureau of Economic Research (NBER)

THOMAS S. ULEN
Swanlund Chair, Director, Illinois Program in Law and Economics, University of Illinois College of Law

JAMES Q. WHITMAN
Ford Foundation Professor of Comparative and Foreign Law, Yale Law School