ABSTRACT
It is now common to see comparative or international law arguments used before legislatures and courts when they consider the legal treatment of LGBT rights issues. Conservative jurists have responded to this practice with hostility. A particularly vocal criticism is Justice Scalia’s dissent in Lawrence v. Texas (2003). Critics from the left, for their part, have suggested that such international comparisons may involve a ‘we-know-best’ style subversion of local conceptions of justice, perhaps amounting to a form of imperialism: a criticism which brings to mind Leonard Woolf ’s contention that under nineteenth-and early twentieth-century European imperialism, ‘the Government’ of colonised which territories ‘was a European government and the inhabitants were subjected to European laws’ (1928: 12). Given the global availability of information, debate about the use of comparative and international material is likely to be ongoing. When thinking about LGBT issues and ideas of ‘empire’ and the ‘imperial’, we might therefore ask whether LGBT litigants, or their opponents, or both, are acting in an imperialistic style in using – or rebutting the use of – comparative and international law arguments. Behind this lies a broader question, namely whether the use of legal or moral arguments on a trans-cultural basis is undesirable precisely because of an association with the ‘imperial’.1
