'Queer Dispute Resolution' by Daniel Del Gobbo in (2019) 20
Cardozo Journal of Conflict Resolution 283
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In Anglo-American legal discourse, the juridical subject of dispute resolution has traditionally been conceived as a bearer of rights or a bearer of interests: rights, in the model of liberal legalism that regards adjudication (ie court and tribunal processes) to be the preferred means of resolving disputes in the adversarial tradition; or interests, in an alternative or complementary model that regards consensual dispute resolution (ie negotiated and mediated settlement processes) to be the preferred means of resolving disputes in the non-adversarial tradition. This article explores the ethical implications of reframing the bearer of interests as a bearer of desires.
This is more than just semantics. Reconceiving the juridical subject in this way invokes the contemporary tradition of progressive social theory that has centered the concept of desire in its critique of the liberal humanist subject. This critique has yet to be fully explored in the legal scholarship. One of the most productive lines of argument in this tradition is derived from queer theory – in particular, a strand of post-identitarian thinking in queer theory that regards sexual desire as something that is disruptive of ontology regardless of gender or sexual identity. This strand of thinking raises important questions in this context. Is it possible to theorize juridical subjectivity as a form of sexual subjectivity? What follows from such an effort to “queer” the constitution of the juridical subject, independent from its politicized identity as a bearer of rights in liberal legalism? Could this theory teach us something about the ethics of rights and interests-based dispute resolution processes?
This paper argues that theorizing about the juridical subject of dispute resolution through the lens of sexual desire encourages us to think about the practice of settlement non-instrumentally, not unlike sexuality itself, which reveals the practice to be immune to the liberal legal imperatives of politicized identity. This is what makes it a fitting analogue for the trope of sexual freedom in queer theory, which opens up a pressing line of criticism about legal policy initiatives that have sought to limit, and in some cases categorically ban the use of consensual dispute resolution altogether. At the same time, however, this theory raises difficult questions about the ethics of sexual desire given the risk that consent to sex and settlement may be induced by coercive force. This helps us to understand the proper role of law – and specifically, the legal doctrine of consent – in regulating the conduct of these practices, or at least to understand it as something deeply fraught with uncertainty.
