Law & Critique: Encountering the Past

by | 6 Jun 2018

We are thrilled to be working with Law and Critique, the primary critical legal studies journal. In the coming months we will be featuring blogs from some of their most recently published authors, these will include links to open-access read-only versions of their journal articles. Our first blog comes from Kay Lalor. The full text of Kay’s Law and Critique article can be read here.

At the Commonwealth Heads of Government Meeting in April 2018, Theresa May expressed her ‘deep regret’ for the British Empire’s imposition of anti-sodomy laws on its colonies.  Alongside such expressions of historical regret, LGBTI rights have increasingly come to be associated with social progress and progressive values. The temporal dimensions of this contrast between historical regret and present progress are significant: history and memory are intertwined in international LGBTI rights politics and practice. Too often however, this intertwinement is reduced to a simplistic dichotomy of either LGBTI rights as ‘social progress’ or LGBTI rights as a form of neo-imperialism.  In short, while LGBTI rights are increasingly visible in international and transnational legal spheres, their presence is grounded in structures of thought and action that limit the scope for imagining sexual orientation and gender identity (SOGI) justice.

In this context, Anghie’s observation that ‘we need a better framework to see how novelty develops’ seems particularly pertinent.[1] One means of seeking this novelty is an exploration of the insights offered by different theoretical perspectives on current and past problems. For example, Anghie’s analysis of the ongoing presence of the colonial encounter and the civilising mission within  international law[2] can be usefully contrasted with (anti-dialectical) Deleuzian jurisprudence, particularly that of Alexandre Lefebvre.[3] While TWAIL scholarship and Deleuzian jurisprudence may not always sit comfortably, the tensions that they generate can be used to explore how a ‘grand narrative’ of a civilizational binary is an unacknowledged but significant presence within transnational LGBTI rights.

In particular, this perspective shows how, even at the ‘cutting edge’ of international LGBTI rights, a civilizing mission is often habitually or unthinkingly reproduced.  Lefebvre argues that law – and particularly judgment – is an act of perception and selection of points of legal relevance from among an ‘infinity of points and sides that go neglected’. In most cases, this selection goes unnoticed: we recognise what is familiar and select appropriate habits and recollections.[4] In international law, it is the structure of the civilizing mission that is habitual. Structures and logics of civilizational clash guide an unthinking selection of legally relevant arguments and actions. As such, the legal (and quasi-legal) actions required here are those that pursue justice for SOGI minorities while simultaneously seeking to subvert habitual logics of civilizational clash.

Civilizing Missions and Economic Subjects

A recent, high profile event in LGBTI rights—the withdrawal by the World Bank of a $90 million loan to Uganda following the passage of the Anti-Homosexuality Act 2014(AHA)—is a particularly apt demonstration of why this approach is necessary. Unquestionably repressive and dangerous for LGBTI, queer and kuchu Ugandans, the AHA not only increased criminal penalties for same sex activity, but also prohibited advocacy for SOGI issues in a way that would have been devastating for activist groups. It was annulled less than a year after it became law, in OlokaOnyango and 9 Others v. Attorney Generalwhich found that parliament had not been quorate when the Anti-Homosexuality Bill was passed.

In this reading, the ‘story’ of the AHA is relatively simple – a regressive piece of legislation was passed and then annulled on procedural grounds by a domestic court. However, the legislation also had a profoundly international dimension and was vocally opposed and supported by different states, religious groups, NGOs and international organisations. Within Uganda, homosexuality was often, although not uniformly, viewed as synonymous with un-African values; and support for anti-LGBTI measures was elided with expressions of post-colonial sovereignty.  Ugandan LGBTI and human rights activists had to carefully manage dynamics of time, temporality and colonial history in their legal strategies in order to combat or side-line the elision of LGBTI persecution with anti-colonial rhetoric.[5]

This attentiveness to the presence of history in law was missing from the World Bank’s withdrawal of its loan, as was any clear  acknowledgement of the Bank’s own patchy historical record on both SOGI and human rights. Moreover, the money that was withdrawn was not directly related to issues of SOGI discrimination – it had been intended to support maternal healthcare services.  This and other inconsistences were glossed over through the framing of the loan’s withdrawal as an economically rational decision, with Bank President Jim Yong Kim writing:

‘These acts of discrimination against a group of people because of their sexual orientation cannot be tolerated…Institutionalized discrimination is bad for people and for societies. And as we know well in this institution, widespread discrimination is also bad for economies’

For the Bank to respond to the AHA, the situation in Uganda had to be perceived and framed in a way that brought it within the Bank’s competencies. In withdrawing the loan, the Bank fell back upon its traditional logic of economic development and traditional method of compelling change by imposing economic conditionalities. The specifics of the loan as well as the complex cultural, political, legal and historical specificity of Uganda became a generalised issue of the ‘tolerant’ Global North managing the ‘intolerant’ Global South, through a mode of technical engagement. Not only did this side-line difficult questions of politics, power and value, it also repeated a very familiar pattern of technical management, identifiable in colonial law, the mandate system, and the traditional operations of the IFIs throughout the 20th century.

In this way the Bank’s authority to regulate sexuality and gender identity was reinforced—and with it, the larger international (grand) narrative of LGBTI progress which obscures colonial histories, and envisages a future of economically engaged queers who are full participants within a modern state.[6] The reality of Ugandan LGBTI lives and the complexity of their engagement with law is rendered invisible in the face of this grand narrative. This allowed Bank to operationalise a kind of habitual repetition of international law in a way that repeated historically situated forms of control.

Finding new futures

The point here is not to support the domestic Ugandan narratives that equated anti-LGBTI action with post-colonial sovereignty and anti-imperialism. Nor is it to argue that there is no place for international or transnational action on LGBTI rights.

Instead, this is a larger argument about how patterns of perception and action are unthinkingly reproduced in international efforts to respond to repressive domestic legislation. Not only did the Bank translate the complex dynamics of the Ugandan AHA into a question of economic rationality but it alsoreproduced a pattern in which the Global North must manage and educate the Global South.  The past, is ‘habitually repeated’ in a way that prevents the perception or construction of new or better solutions to present problems.

Once again, Anghie and Lefebvre can be read in a kind of productive tension in a way that points to these better solutions. Lefebvre suggests that occasionally, it is possible to identify a moment of uncertainty to which previous, habitual rules cannot easily attach.[7] What occurs here is a pause in which we fail to unconsciously and immediately act out the habitual pattern of the past or the predictable future.[8] It is through this pause – this encounter – that we might recognise the historical and present reality of the ‘civilising mission’. However, rather than unthinkingly repeating and recreating the past, we can recognise the unworkable limitations of current structures and seek ‘the growth and becoming of law’[9], that is, ways of framing future international action in a way that subverts the role of the civilizational binary as an ever present but unacknowledged grand narrative.  It is here that it will, perhaps, be possible to, ‘undermine the dichotomy between colonizer and colonized, self and other on which the civilizing mission is based’.

Given the complexity of queer Ugandan legal existence, it is not surprising that Ugandan activists have been particularly skilled in doing exactly this. Ugandan LGBTI groups pursued multiple strategies ranging from domestic legal action, strengthening the capacities of local and national NGOs, international campaigning  and international legal action which included suing a US evangelical pastor who had preached against homosexuality in Uganda in the US courts through the Alien Tort Statute.  In these actions we can grasp a vital practical and ethical imperative: those who exist within and across the contradictions of international legal systems must be understood not as bodies to be managed, nor sources of data, but as creative generators of novel strategies and developers of new legal arguments for change.

From this perspective, Theresa May’s regret for the actions of imperial administrators may be sincere, yet it means relatively little if not accompanied by a better engagement with how legal structures that were generated through the colonial encounter are repurposed to suit modern problems. With Anghie, we might recognise that our approach to developments in international law – including increased acknowledgments of LGBTI rights claims – must be ‘informed by an understanding of the colonial history of international law and its enduring effects’.  The most radical forms of SOGI justice will be those that acknowledge this history and find ways to actualise the past in ways that expose, challenge and subvert its ongoing influence.

Dr Kay Lalor is a Leverhulme Early Career Fellow and Lecturer in Law at Manchester Metropolitan University.

Many thanks to Dr Annapurna Waughray for her insightful comments on this post.

[1]Anghie, Antony. 2013. Whose utopia? Human rights, development, and the Third World. Qui Parle: Critical Humanities and Social Sciences 22(1): 63–80.
[2]Anghie, Antony. 2007. Imperialism, sovereignty and the making of international law. Cambridge: Cambridge University Press.
[3]Lefebvre, Alexandre. 2008. The image of law: Deleuze, Bergson, Spinoza. Stanford: Stanford University Press.
[4]Ibid p 123
[5]Jjuuko, Adrian. 2016. International solidarity and its role in the fight against Uganda’s anti-homosexuality bill. In Gender, sexuality and social justice: What’s law got to do with it?, ed. Kay Lalor, Elizabeth Mills, Arturo Sánchez García, and Polly Haste. Falmer, Sussex: Institute of Development Studies.
[6]Rao, Rahul. 2015 Global homocapitalism. Radical Philosophy194.
[7]Lefebvre, Alexandre. 2008. The image of law: Deleuze, Bergson, Spinoza. Stanford: Stanford University Press.
[8]Al-Saji, Alia. 2004. The memory of another past: Bergson, Deleuze and a new theory of time. Continental Philosophy Review 37(2): 203–239.
[9]Lefebvre, Alexandre. 2009. The time of law: Evolution in Holmes and Bergson. In Deleuze and law: Forensic futures, ed. Rosi Braidotti, Claire Colebrook, and Patrick Hanafin. Basingstoke: Palgrave Macmillan.


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