ABSTRACT
In the previous chapter, I argued that in order to make legal consciousness a more useful conceptual frame for understanding the place of law in lesbian and gay lives, it is necessary to develop a more nuanced understanding of the key concepts of power and resistance and to include engagement with a plural understanding of law. I now turn to consider how a more finely grained consideration of power and resistance can be brought to bear on legal consciousness studies. In previous legal consciousness studies, the ‘power’ of the state, sovereign, government or other seemingly ‘powerful’ institutions or groups have rarely been questioned (e.g. Ewick & Silbey, 1998; Merry, 1990), and the actions of disadvantaged people, and oppressed groups (such as lesbians and gay men) are easily conceptualised as ‘resistant’. When explaining their ‘against the law’ type of legal consciousness, for example, Ewick and Silbey describe the ‘oppositional practices that are employed by subordinate persons against the powerful institutions or organizations in which they find themselves living and working’ (Ewick & Silbey, 1998: 181). Throughout this book I seek to expose the contingency and instability of approaching power and resistance in this way, and to show that resistance (in particular) is complex, varied and worthy of deeper analysis. Through the theoretical approaches to power and resistance that I use, I therefore complicate this picture of a powerful/powerless dyadic relationship between ‘powerful institutions’ and ‘subordinate persons’. I begin with a brief sketch of how I understand ‘power’, drawing on
Foucault, feminist engagements with Foucault’s analytics of power and the ways in which governmentality studies have developed understandings of power relations. I do not provide a detailed overview of Foucault’s approach to power, as this has been well addressed in a range of contexts,1 rather, I focus in this section on how I bring a Foucauldian approach together with legal consciousness, and what this means for my proposed ‘plural’ conception of legal consciousness. I do this through a consideration of heteronormativity, and what it would mean to think of heteronormativity as ‘legal’, or as a mode of governmentality. In the second section of the chapter, I move on to posit a new lexicon of resistance that draws on Foucauldian approaches to power
relations to argue that creative and technical forms of power allow space for similarly creative and technical forms of resistance. I conclude this chapter with an exploration of how my approach to power and resistance helps to provide a more nuanced and helpful understanding of both the ‘power of law’ and resistance to that power in legal consciousness studies, through a same-sex marriage case study.
