Quod Non Est in Actis Non Est in Mundo: Legal Words, Unspeakability and the Same-Sex Marriage Issue

Law and Critique 26 (1):65-81 (2015)
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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 specifically, 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 first 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 officials 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 official law is always a Janus-faced achievement, but can play as an effective instrument of critique



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From gay liberation to marriage equality: A political lesson to be learnt.Mariano Croce - 2018 - European Journal of Political Theory 17 (3):280-299.
Juridification as politics: An institutional view.Mariano Croce - 2020 - Philosophy and Social Criticism 47 (9):1025-1042.
Juridification as politics: An institutional view.Mariano Croce - 2020 - Philosophy and Social Criticism 47 (9):1025-1042.

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