The study of “sex” and the “law” immediately taps a Pandora’s box of social, philosophical, and political conundrums. Merely providing preliminary definitions of the two terms may not adequately delineate the domain of study. Indeed, each concept compels the analyst to consider a world of discourse and of human interaction.
“Law,” when restricted in its connotations to those entailing legal forms and systems can be at least minimally demarcated for analysis. Yet even when “law” is reified as an explicitly enacted or habitual set of rules for behavior, its conceptions will vary. (On one level, of course, it is that very variation which strengthens the processes of American jurisprudence.) Although the law is generally presumed to serve the “good” of the community, the puzzle which Swift posed in Gulliver’s Travels continues to be true: “How . . . should [it] come to pass, that the law, which was intended for every man’s preservation, should be any man’s ruin.”
Gulliver notwithstanding, in sociological investigation, a society’s codified law does provide an arena within which to consider a people’s notion of itself and of others. Most obviously, laws speak about and express sanctioned behavior and specify other, less tolerable or intolerable (illegal) activities and interactions. Law separates that which should be from that which should not be. More significantly, law is built upon and contains implicit assumptions about the nature of things as they are. Under-girding the formalized prescriptions and prohibitions of a legal system lie pervasive, taken-for-granted conceptions of and about reality.
Law is created and enforced by particular groups of people who may not represent the interests of all a society’s participants, some of whom may, as Swift put it, face their ruin through the law’s hand. Correspondingly, laws frequently become the subject of dispute; the very founding of the American nation was represented, if not actually caused by revolutionary dispute over the proper application of British laws of taxation. The obviousness of refutation and protest can, however, conceal fundamental similarities in the way disputing groups understand nature or conceive the limits and possibilities for action. Legal cases and court decisions tend to frame areas of divergence, to focus on issues of disagreement. Equally significant to sociological study are unspoken agreements and shared assumptions; such assumptions often remain tacit, precisely because they are so “obvious,” yet they provide a ground on which conflict can be created, shifted, or resolved.
We are concerned here with the application of law to and the interrelation between law and sex. If it is discomforting to attempt definitions of law, it may be impossible to define sex. Even the most immediate definition—”two divisions of organic beings distinguished as male and female respectively” (Oxford English Dictionary)—has ramifications. If one takes “sex” to imply modes of behavior, the connotations amplify and spread almost unendingly. Since Freud’s work, the forms and referents of sex appear to practically everyone, practically everywhere. Shulamith Firestone suggests that Freud merely said it; he constructed an important theory based on notions of sexuality, because he described a key characteristic of his era: “Freudianism is so charged, so impossible to repudiate because Freud grasped the crucial problem of modern life: Sexuality” (Firestone).
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