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Law Critique (2015) 26:6581
DOI 10.1007/s10978-014-9147-3
Mariano Croce
Published online: 9 October 2014 Springer Science+Business Media Dordrecht 2014
Abstract This article centres on the legal recognition of same-sex marriage with a view to exploring the issue of unspeakability; that is, the condition whereby some questions cannot be articulated because of a lack of words. More specically, the article will explore what happens to those social practices that are not given legal speakability and thereby legal recognition/protection. To this end, I rst focus on how words are produced in the sphere of everyday life and their dependence on the existence of a widespread normality. I then discuss how the law sees to the preservation and the reproduction of normality by providing a set of categories which are made available to law-abiders to settle disputes when they arise. In doing so, I elucidate the twofold role played by law as both a selective and a creative device. To cast some light on the particular way law operates, I discuss an important decision by the Italian Constitutional Court in 2010, which provides a telling example of how legal ofcials are able to seal off the set of legal categories and to leave some issues in the sphere of the unspeakable. I then unearth a paradox: while unspeakability reveals a condition of powerlessness, the acquisition of speakability could bring about even harsher exclusionary effects. I conclude by arguing that the entry into the sphere of ofcial law is always a Janus-faced achievement, but can play as an effective instrument of critique.
Keywords Legal categories Reication Same-sex marriage Social meaning
Unspeakability
The question of whether or not the recognition of same-sex marriage represents a signicant step forward for lesbians, gays, and bisexuals is today a subject of
M. Croce (&)
University of Antwerp, Antwerp, Belgium e-mail: [email protected]
Quod Non Est in Actis Non Est in Mundo: Legal Words, Unspeakability and the Same-Sex Marriage Issue
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controversy. At least since the 1990s a voluminous literature has carefully scrutinised the advantages and the drawbacks of what can be described as a momentous transition in the notions of family and marriage in a growing number of countries around the globe. Advocates of same-sex marriage celebrate the emancipatory force of political...