Positivist approaches to legality are rooted in neoliberalism because they rely upon moral productivity and legal recognition - reject the law as a space of queer futurity.

Queer theory thrives on suspending and reconsidering conventional normative judgments in recognition and enjoyment of the complex, uncertain, irrational, and paradoxical in law and society (Halley, 2004). Queer theory rejects the idea that law can neatly and nicely incorporate moral principles that give legal subjects the choice of obeying and disobeying, subject to our moral approval or condemnation (Halley, 2004, p. 31). Drawing on Duncan Kennedy’s work, Ian Halley (2004) explains that “the real action is not in law per se, but in wildly different interested players who participate in wildly complex social interactions” (p. 31) as they “bargain in the shadow of the law” (Mnookin & Kornhauser, 1979, p. #). The normative principles ostensively embedded in law are produced and implemented through power not dependent on that law or on those stated norms. As a result, legal theory is naive, arrogant, or deceptive when it focuses on perfecting and purifying law’s moral authority. Because the realm of politics cannot be ordered by will and intention, but is a complex domain of unintended consequences that follow the unpredictable collisions of human, historical, and natural forces, a politics of abstract principle risks missing its aim and indeed producing the opposite of the wished-for result. (Brown, 2001, p. 27) With this analysis, queer theory joins a wider body of legal realist and critical (including feminist) work devoted to digging beneath stated norms and rules to unearth the raw and messy dynamics of power. But queer theory also promotes a particular understanding of power that leads it to more directly challenge the normative approach common in other branches of critical 17 legal theory. Following Foucault, some queer theory analyzes power not as a problem of subordination and domination susceptible to moral judgments of good and bad, but as a process of subject production (Halley, 2004). The problem of law and intimacy, in this view, is not that the law unjustly reinforces external social power by privileging some and penalizing others in their expression of sexuality or relation to dependency. Instead, queer theory starts from the presumption that our ideas about morality cannot serve as a benchmark by which to measure and correct power imbalances. Power, whether inside or outside of law, inevitably shapes, grounds, and confounds ideas about morality. More specifically, queer theory emphasizes that in penalizing and privileging sex, law shapes our ideas about who we are, what we want, what counts as sex, and what counts as pleasure and pain. Queer theory takes an ideological position that affirms sex and diverse sexual performances, but it does not justify that position by arguing that sex is a moral good. Instead, queer theory affirms sex not just despite but because it involves moral ambiguity, contradiction, and even immorality—it especially affirms sex as bad (Halley, 2004). Queer theory explores the dynamics of sex to show that pleasure often comes from pain, power from prohibition, and that domination often is impossibly mixed up in subordination (Halley 2004). Queer theory sometimes takes that complexity and fluidity of the harmful and the beneficial in sex to question moral judgments in general. From this theoretical standpoint, Halley criticizes feminist efforts to prohibit sexual harassment for arrogantly claiming to “know” what forms of sexual interactions are good and which harmful, and for attempting to impose that vision on others. For instance, she chides feminism for knowing that “A husband who introduces his penis into the vagina of his sleeping wife has raped her and should be prosecuted,”or for “think[ing] that a man who would joke to a 18 female subordinate at work about pubic hairs appearing on his Coke can has shown himself unfit for higher office” (Halley, 2001 p. 89). Analyzing litigation ostensively aimed at gaining protection against sexual subordination, Halley (2003a; 2003b) argues that, the facts in the record are subject to multiple interpretations about who was dominating whom, and whether that domination was harmful or pleasurable to the dominated. From a Supreme Court case recognizing same-sex sexual harassment as actionable employment discrimination,2 Halley (2001) hypothesizes that the alleged harassment victim could instead be (in theory if not in reality) an agent of sex panic seeking to deny his desire for same-sex sadistic eroticism and to shift the blame for that activity to others. She suggests that this uncertainty shows that we should discuss questions of law and intimacy raised by such cases not on moral grounds, but on political grounds, as conflicts of interested power between (for example) those who prefer protection against the risk of sexual coercion in the workplace and those who prefer protection against the risk of sex panic in the workplace (Halley, 2001). Queer theory’s anti-moralism plays a tune familiar in contemporary theory and culture. In what has become a conventional formula of legal scholarship and public policy debate, “economic” analysis inverts the purported public values justifying liberal or progressive law and policy to show that what seems on the surface to protect the vulnerable against subordination instead promotes unjust domination by suspect and special interests. In the neoliberal ideology, as in the queer theory I have been discussing, public values always reduce to private interest, so that morality always reduces to power. For example, “economic” analysis of law has tended to reduce workers’ rights laws to race and gender privilege (Bernstein, 1997), and reduced civil rights laws to economic privilege (Bernstein, 1990). Turning to other common targets of law-and-economics, plaintiffs’ rights in 19 tort law become economic privilege for wealthy lawyers; regulatory protection for consumers become anticompetitive economic protections for elite businesses; rights to compensation for workplace injury become opportunities for fraud and malingering; anti-poverty programs become support for bloated bureaucracies and lazy bureaucrats and for future criminals. But, under the surface, this neoliberal anti-moralism ends up being thoroughly moralistic. It does not criticize the self-interested power behind certain normative principles (typically progressive or liberal) simply on the ground that these self-interested gains undermine the competing self-interested gains that critics prefer. Instead, “economic” arguments tend to criticize these “special interests” on the ground of their sinister motive and character (they are undeserving and elitist) and because they undermine some normative conception of the public interest (they are “inefficient” or contrary to some naturalized and normalized ordering). For example, legal rules enhancing consumers rights in tort law are bad in this view not because these rights hurt the competing political and economic self-interests of wealthy corporate shareholders. Instead, these free-market economic arguments challenge these rights on the ground that they enrich undeserving interests at the expense of overall welfare. Although economic calculations of the overall societal interest in maximizing efficiency sound neutral and scientific, they rest on thoroughly subjective and contestable moral judgments about, for example, whose interests (measured in what time and place) count as the aggregate interest, or what counts as a cost and what counts as a benefit (Kennedy, 1981; McCluskey, 2000; McCluskey, 2003b). Stripped of their technical veneer, these law-and-economics arguments against moralistic pursuit of the “public interest” are simply another version of arguments about what counts as the “public interest” versus “special interests.”