A Transfeminist Critique of the Rule of Law

I decided to put this class paper on my medium since I think it raises some interesting points about activism and appeals to legality.

In this paper, I will argue that the rule of law is an undesirable notion in two ways. First, I will point out that the notion of rule of law is not descriptively accurate because law-enforcement always involves significant discretion and is therefore a variant of the rule of men. Second, I will argue that the rule of law is not a normatively desirable notion because appeals to the rule of law act as a barrier to the emancipation of marginalised groups. I will contrast the rule of law to the notion of political refusal as modes of emancipatory labour. My argument will be driven by a transfeminist[1] analysis that builds on the various interconnections between gender and the rule of law.

The rule of law is a lot like gender. The analogy is puzzling, at first glance. Coming from a trans experience, the parallels are much more visible to me: “Then an analysis can focus not on what the rule of law is, or what it should be, but on what it does, what it accomplishes, what it produces. Indeed, if the only thing we know for sure about the rule of law is what any of these many state actors say it is in any particular instance, the rule of law will turn out to be as messy and diffuse a concept as the state[2].” This passage is perfectly intelligible, and yet every reference to the rule of law in the passage was a replacement of the term “sex”. Both the rule of law and gender, in legal contexts, are normative notions which seek to define the proper relationship between citizens and between citizens and the state. Whereas the supported relationship is a cisheteronormative[3] one with regards to gender, the rule of law promotes a law-abiding relationship between citizens and state. In the negative chasm of each conception, we find transgender people and emancipatory actors. Gender as a state construct makes trans lives either impossible or difficult, whereas the rule of law makes emancipatory lives either impossible or difficult. That trans lives are often led as emancipatory lives attests to importance of transfeminist analyses of the rule of law. The analogy is also interesting insofar as the enforcement of gender as a legal-administrative category to the disadvantage of trans people is frequently defended by appeal to the rule of law.

The notion of the rule of law implies that we are ruled by law. However much a truism as this sentence may be, it is not a trivial point. There must be a meaningful way in which laws, rather than people, are what rule our lives[4]. For some rule of law theorists, the enforcement of laws satisfies the rule of law if it is exercised by those in power in their role as agents of the law, in a good faith belief that the law mandates them to exercise their powers in that manner[5].

Inherent in this notion is that being ruled by law is possible. We have room to doubt this assertion on two grounds. First, discretionary power is distributed widely and unevenly. Too many people have too much discretionary power for us to realistically ensure that they always act in accordance to such a good faith belief. Second, good faith beliefs cannot be so detached from the agents which hold them that their imposition can be reasonably interpreted as a rule by law rather than by men.

Take for example the mobilisation of gender as a determinant of access to bathrooms. It can be good faith interpretation of the laws prohibiting access to bathrooms for genders other than our own than to say that gender is a biological and thus that trans women are prohibited from entering women’s bathrooms. Under another good faith interpretation of those laws, gender is seen as psychosocial, and trans women are viewed as women who belong in women’s bathrooms.

Yet, it would be peculiar to view this interpretive work as a way of being ruled by law. Judges and police officers belong to a privileged class that is harder to access for many people. As of now, there is only one openly trans judge in Canada[6], far below the ten we would expect among the roughly 1,700 judges in the country[7]. Much of the enforcement of gender divisions also occurs at the administrative level[8], where decisions are subject to much less scrutiny than in courts.

The opinions of agents of the state are moulded by their socio-political position as cisgender people. As Dean Spade reminds us, institutions such as “medicine, the social sciences, and education” are integral to how we view our bodies and those of others, and how we understand what gender is[9]. Those institutions are not neutral, but reflect the ideological boundaries of our cis-centred world. We are less ruled by laws than by the ideologies of those in power. Though we are not ruled by men in the sense of unfettered, self-interested discretion, we are ruled by men in the sense that we are ruled by the application of their background beliefs to the law[10]. Unsurprisingly, discrimination and violence “have persisted despite law changes that declared them illegal[11],” and many protective laws such as anti-discrimination laws “are generally not enforced for any of the groups covered by them[12].” On a more general level, laws apply so widely that they must be selectively enforced by those in power, and that selective enforcement is guided by an interpretation grounded in their background beliefs.

However much their opinions may be in good faith, good faith does not prevent the opinions from being fundamentally an opinion guided by their personal background and understanding of our world, with all ideological preconceptions that this carries. To call this rule of law obscures the power dynamics that are deployed in our societies, and covers injustice with the veil of the law[13]. Law is legitimate in ways that individuals aren’t. By suggesting that we are ruled by law when we are really ruled by men — just in a different way from the scariest forms of rule by men — we lend a legitimacy to state and state-sponsored actions that it doesn’t have.

Not only is the notion of rule of law an inaccurate description of how states can and do enforce laws, it is also a normatively unsavoury concept. In the early 1980s, shortly following the repatriation of the constitution and the addition of the Charter, Alan Borovoy was invited to speak at McGill[14]. Professor Pearl Eliadis related that she had expected him to express joy at the constitutionalisation of human rights. Instead, he expressed concerns and disapproval for the law. According to him, legally cementing human rights was inimical to social progress because it leads people to rely on courts instead of direct action in the face of oppression.

The rule of law is not necessarily better than negotiated arrangements. Trans people recognise the need for gender segregated spaces, yet many adopt a politics of refusal according to which it’s simply not the state’s business to regulate gender and record it administratively. According to Emi Koyama, “[t]rans liberation is about taking back the right to define ourselves from medical, religious and political authorities[15].”

I have recently expressed similar concerns regarding trans activism and reference to courts: more and more, people’s response to unacceptable situations is to say that it’s illegal and that people should sue, instead of promoting lobbying, grassroot organising, education, and protest. Human rights are fairly conservative. While promoting change, they’re limited of application, allow the government to justify its infringements, grant considerable deference to the government over the appreciation of social science, and take a very long time to get recognised. An ongoing lawsuit by the Centre for Gender Advocacy over gender markers on birth certificates began being prepared in 2013 and has yet to result in a trial-level judgement[16].

According to the rule of law, emancipation should be conducted through legal channels, with respect for the law prevailing throughout the process. Though perhaps the laws are wrong, the exercise of state power under the rule of law in some way makes it sufficiently legitimate to restrict dissent to recognised channels. Laws command our obedience and fidelity. We must allow ourselves to be ruled by them lest we commit a moral wrong.

As Paisley Currah notes, a “certain domesticated form of selfhood is reproduced when individuals petition the government for recognition of their particular selves[17].” As the famous quote by Assata Shakur goes, “[n]obody in the world, nobody in history, has ever gotten their freedom by appealing to the moral sense of the people who were oppressing them[18].” Protest, sometimes violent, and civil disobedience have been at the centre of emancipatory movements, and have been integral to social progress.

Under the lens of the rule of law, such actions are either unacceptable or, at best, an evil we must nonetheless accept in the hopes of a greater good. Either way, emancipatory actions are cast as prima facie objectionable. Popular opinion, informed by the ideal of the rule of law, tends to condemn them. Nowhere is this clearer than in the criticisms of the Black Lives Matter movement which is regularly criticised for disrupting the peace, a disturbance rhetorically marked as disrespectful to the rule of law. People engaging in civil disobedience with regards to bathroom gender segregation have also been criticised for not going through the proper channels and disrespecting the law[19]. Sanctions are requested as a way of reaffirming the supremacy of law.

Protests and civil disobedience are a form of refusal. If the law is illegitimate, then the rule of law is merely a tool of the oppressor. The notion of refusal as an emancipatory strategy standing in contrast with the rule of law approach of requesting recognition has been theorized by Indigenous writers such as the anthropologist Audra Simpson. It seeks to “question [the] legitimacy [of] those who are usually in the position of recognizing: What is their authority to do so?[20]

Audra Simpson highlights the core problem with going through formal channels of recognition, relying on officials’ willingness to respect the rule of law: “This inclusion, or juridical form of recognition, is only performed, however, if the problem of cultural difference and alterity does not pose too appalling a challenge to the norms of settler society, norms that are revealed largely through law[21]”.

Indigenous refusal involves the rejection of the settler colonial state’s professed sovereignty. This involves a rejection of the rule of law in the Canadian state. For transgender people, it typically involves a refusal to see gender regulated by the government. This response is intimately tied to the descriptive argument against the notion of the rule of law. The notion of the rule of law is normatively undesirable because it favours the status quo against minorities, and thus perpetuates the rule of the oppressors. Where the rule of law is seen as commanding fidelity to law, as Lon Fuller suggested[22], marginalised group sees it as a rhetorical trap that serves to criticise foreign countries all the while downplaying imperialist violence and stifling criticism coming from inside the state.

When people appeal to the rule of law to ask that we settle disputes through formal legislative and juridical channels[23], they ask us to subsume our wellbeing to their desire for order and comfort, and ask that we recognise the legitimacy of a political system that may refuse to recognise our needs. Contrary to thinkers like Jeremy Waldron who praise talk about the rule of law insofar as it promotes the maintenance of the rule of law, I suggest that we see much of rule of law talk as a derailing strategy in the face of critiques of injustice[24].

Recalling transgender and Indigenous realities allows us to better understand the dangers of the rule of law. By describing certain arrangements as rule by law rather than by people, it passes into silence the wide range of institutional and relational dynamics that allow certain people to translate their biases into a legally justified imposition of state power or state-sanctioned power. And by prescribing certain forms of political resistance while rejecting other seemingly-justified forms of political resistance in the face of oppression, the notion of rule of law serves the status quo and disserves marginalised groups. Discouraging protests and civil disobedience is not a laudable ambition. In an ironic twist, the rule of law shows itself to be simultaneously quixotic and conservative. This isn’t to say that we should do away with the notion of the rule of law in every context, but it certainly warrants mindfulness to how we deploy and idealise it.

[1] Emi Koyama, “The Transfeminist Manifesto” in Rory Dicker & Alison Piepmier (eds.), Catching a Wave: Reclaiming Feminism for the 21st Century (Boston: Northeastern University Press, 2003).

[2] Paisley Currah, “The State”, (2014) 1:1 Transgender Studies Quarterly 197 at 199.

[3] That is, a relationship that organises people along lines dictated by cisgender and heterosexual conceptions of the family and of social life.

[4] Paul Gowder expresses this as the requirement of regularity: “those who control the power of the state may not use it whenever and however they want, bound only by their untrammelled whim — their power must be bound by law in some meaningful sense.” Paul Gowder, The Rule of Law in the Real World (Cambridge: Cambridge University Press, 2016) at 12.

[5] Gowder, supra note 4 at 13, 15.

[6] Laura Beeston, “Canada appoints its first transgender judge”, The Globe and Mail (18 December 2015).

[7] Andrew Griffith, “We need a baseline of information about diversity in judicial appointments, in order to evaluate the government’s promises”, Institute for Research on Public Policy (4 May 2016). Around 0.58% of the population is transgender: Andrew R. Flores et al. How Many Adults Identify as Transgender in the United States (Los Angeles: The Williams Institute, 2016).

[8] Dean Spade, Normal Life: Administrative Violence, Critical Trans Politics, and the Limits of Law (Durham: Duke University Press, 2015) at 73.

[9] Spade, supra note 8 at 52–53.

[10] This is in line with some popular rule of law narratives that questions judges’ neutrality: Jeremy Wadron, “Is the Rule of Law an Essentially Contested Concept (In Florida)?”, (2002) 21:2 Law and Philosophy 137 at 147–148, 155–156.

[11] Spade, supra note 8 at 40.

[12] Spade, supra note 8 at 14.

[13] In the same train of thought, see Currah, supra 2 at 197: “For the Left, […] the liberal state and the principles of political equality it celebrates conceal the maldistribution of equality.”

[14] I unfortunately cannot provide a citation for this anecdote, as it was told during a Civil Liberties class in October 2017. Professor Eliadis has confirmed by email that the event was in the early 1980s and that the speaker was Alan Borovoy.

[15] Koyama, supra note 1 at 250.

[16] Colin Harris, “Centre for Gender Advocacy to Challenge Quebec Sex-Change Law in Court”, The Link (26 November 2013).

[17] Currah, supra 2 at 197–198.

[18] Cited in Assata Shakur, “Assata Shakur on Race War”, Zed Books Blog (16 August 2017).

[19] This embodies a very Fullerian conception of the rule of law. Viz. Lon L. Fuller, The Morality of Law, rev. ed. (New Haven: Yale University Press, 1969) at 39.

[20] Audra Simpson, Mohawk Interruptus: Political Life Across the Borders of Settler States (Durham: Duke University Press, 2014) at 11.

[21] Simpson, supra note 19 at 20.

[22] Fuller, supra note 18 at 39.

[23] Some rule of law theorists contest that this is required by the rule of law, noting that anarchy respects the rule of law. See for example Gowder, supra note 4 at 56–57. This contrasts with Fuller, according to whom it is particularly important that disputes be governed by law: Fuller, supra note 18 at 39. It was also rejected by the Supreme Court of Canada: Re Manitoba Language Rights, [1985] 1 S.C.R. 721 at para. 64.

[24] Waldron, supra note 10 at 163. Cf. H.L.A. Hart’s perspective as mentioned in Jeremy Waldron, “The Concept and the Rule of Law”, (2008) 43 Georgia Law Review 1 at 42.