Queer Dispute Resolution

Authors

Daniel Del Gobbo, Osgoode Hall Law School, York University

Abstract

The article is organized as follows. Part H traces the conceptual shift in legal theory from thinking about the juridical subject as a bearer of rights to a bearer of interests. This provides the necessary context for my reframing the bearer of interests as a bearer of desires. Part III begins to explore the implications of this move, drawing on what I call the "ethic of positivity" in parts of queer theory that celebrates the potential for sexual desires to transcend identity categories. This theory suggests that the ethical promise of settlement derives from the potential of the subject's interests to reach outside the bounds of liberal legalism and articulate a field of justice that is more substantive, pleasurable, and new. Part IV pushes this claim to its limit by underscoring the fact that some people report their lived experiences of sexuality as unwanted and therefore potentially harmful. This suggests that the ethical promise of settlement derives from a collaborative process that respects the other's autonomy, what I call the "ethic of mutuality" in parts of queer theory. Finally, the article concludes by suggesting that these two ethics come together, necessarily albeit problematically, in the legal doctrine of consent. One of our tasks ahead should be to continue refining the legal doctrine so that it strikes an appropriate balance between these ethical imperatives in law. Throughout the article, I will illustrate these points by reference to a case study of two separating spouses negotiating the terms of their divorce, which should help to ground my contributions in a practical legal context.

Disciplines

Dispute Resolution and Arbitration | Human Rights Law | Law | Legal Education

Recommended Citation

Daniel Del Gobbo, Queer Dispute Resolution, 20 Cardozo J. Conflict Resol. 283 (2019).
Available at: https://larc.cardozo.yu.edu/cjcr/vol20/iss2/3