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Janet Halley is Royall Professor of Law at Harvard Law School, where she teaches family law, comparative family law, discrimination law, the legal regulation of sexuality, and legal theory. She is the author of Don't: A Reader's Guide to Military Anti-Gay Policy and, with Wendy Brown, coeditor of Left Legalism/Left Critique.

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"Split Decisions is a bold and nuanced new approach to questions of feminism and sexuality. In a field that's crowded with politically correct dogma and snide reaction, it stands out as critique in the noblest sense of that tradition: Halley is sensitive to feminism's contributions but she also refuses to apologize for its contradictions and its limitations. Split Decisions is more than a critique; it initiates a paradigm shift--Halley offers insights into the intersection of law and feminism that have never been seen in print before."--Richard T. Ford, Stanford Law School

"This is a wide-ranging, vastly original, knowing, and challenging book; there is nothing like it in any of the antinormative challenges of the last two decades. What's more, its cheerful polemic is a pleasure to read."--Lauren Berlant, University of Chicago, author of The Queen of America Goes to Washington City: Essays on Sex and Citizenship

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Split Decisions

Princeton University Press

Chapter One

Over the last twenty-five years the U.S. Left has produced a rich range of theories of sexuality. These theories differ a lot, partly because they were made by people involved in a context of deep internal critique, debates so intense that they were sometimes experienced as "war." The result is a wide array of incommensurate theories of sexuality and of power.

This book argues that the splits between the theories are part of their value. It proposes an alternative to the normative demand to harmonize them, reconcile them, and smooth out their clashes. I argue here for a politics of theoretic incommensurability. I think it will be better for the Left-we will make better decisions about what we want, and possibly even win more conflicts with the Right-if we lavish attention and appreciation on the capacity of our theory making to reveal the world as a normatively fraught, contradictory, conflictual place, a place where interests differ, change over time, and come into zero-sum conflicts, a place where all our decisions-even our decisions to abstain from deciding-shift social goods among highly contingent but pressing, urgent, vital interests.

As part of this argument, I also argue that theory making has been crucial to left-of-center politics of sexuality. What people have done theoretically has changed reality for them, has changed them so deeply it has shifted their very beings; and it has changed their political situations. And as their political life has changed, the demands they bring to theory have shifted; the desire for theory has been a political desire.

I assume here that human beings operate according to the maxim "I'll see it when I believe it"-or perhaps more accurately, "I'll see it when I can and do theorize it." And so I'll argue that our different theories about sexuality are useful to the extent that they throw into visibility different stakes which we then distribute when we act politically and legally. Theory produces reality not only by making it visible, moreover, but by shifting the available terms for consciousness, desire, and thus interest. And so theory is part of how we distribute social goods toward and away from various constituencies and interests. Inasmuch as we are all legal decision makers when we decide what political aims to pursue and resist, when to engage and when to hang out on the sidelines, the perceivability and ethical urgency of various social interests are deeply contingent on the theories we have developed and on our selection of some of them in favor of others.

This book argues that, at least when it comes to sexuality, the responsible way to engage in a politics that depends on theory and that produces it-a politics that shifts social resources toward and away from safety and risk, men and women, gay men and lesbians, pleasure and danger (etc., etc., etc.) in part by rendering them theoretically salient, culturally productive, and thus phenomenologically accessible-is to decide in the splits between theories and between the interests they make visible, produce, and narrate. That's how this book got the title Split Decisions.

The book got its subtitle because one of the chief impediments to my being able to persuade people to take the attitude I've just described (that is, to desire it) lies in the particular place that feminism occupies at the moment in left-of-center U.S. sexual politics. Three commitments that attend feminism today are involved here. The first seems always to be part of feminism today in the United States: it is persistently a subordination theory set by default to seek the social welfare of women, femininity, and/ or female or feminine gender by undoing some part or all of their subordination to men, masculinity, and/or male or masculine gender. That is, there are three parts to this first part: a distinction between something m and something f; a commitment to be a theory about, and a practice about, the subordination of f to m; and a commitment to work against that subordination on behalf of f. In my shorthand throughout this book, these three parts are m/f, m > f, and carrying a brief for f. It's not necessary for feminism to hold to these three points, but my experience is that so far, in the United States, it always does.

The second is the deeply held but entirely dispensable view that feminism is an indispensable element, if not the overarching structure, of any adequate theory of sexuality, gender, m/f, and associated matters.

And the third is a series of interconnected assumptions that almost all feminists share with almost all left-of-center theorists of sexuality in the tradition I study here: that one theory is better than many; that integrating alternative theories together is the goal of our work; that reality must come fully into line with, be engulfed by, theory; that theory will tell us all the crucial things we need to know about moral value and emancipation. I'll call this the prescriptive deployment of theory. The consequence of thinking this way, in the debates I examine in this book, is a pervasive consensus that any particular theory is a compact, dense mass of valid description, correct normative judgment, and indispensable emancipatory aspiration.

The story of feminism that I tell here is the story of people setting some of these commitments aside. First, feminism has been highly productive both as a social force and as an idea generator for the Left; and some of its offspring are not feminist. That is, many important strands of left-of-center thought and practice about sexuality don't posit feminism as an indispensable element of what they think and do, and thus don't hold to a theory of social subordination in which emancipation is figured as the release of women, femininity, and/or female or feminine gender from its subordination to men, masculinity, and/or male or masculine gender. Of course these splits have been highly controversial, painful, and life-changing for those involved in making them. I argue here that they should also be remembered for the sheer joy that they made possible, both inside feminism and in its prodigals. They have multiplied the desires and interests that we can see and articulate, and among which we distribute social goods. I think that has been a good thing, most of the time. I tell a story here in which the very vitality and usefulness of feminism as a social theory seems to have waxed when the commitment to its omnipresence wanes, and vice versa.

Finally, I think some of the agony of split decisions, both at the theoretical and at the political and legal levels, arises from the assumption that feminist theory-or a particular feminist theory, or a competitor of feminist theory-is inevitably aspirational and normative even when it operates at the level of description, that it must be deployed prescriptively. Most of the theories that I present in this book deploy theory in order to map a moral universe of good and bad sex and of sexual emancipation and sexual oppression, and to produce from that map a morally valid political plan for getting people more of the former and less of the latter. This is a compelling project, and we all do it. But sometimes we deploy the theory that results prescriptively: we stipulate that it does or must describe reality and explain why different aspects of it are good or bad, and point the only way to...