A seven year old boy bestows an uninvited kiss upon the cheek of a girl and is suspended from school for disciplinary reasons. A senior female professor, and Director of a Program in Women’s Studies, kisses a female graduate student at a party held during a conference on gay and lesbian studies. After a thirteen month ordeal for all concerned, the university determines that the professor was in breach of the university code governing consensual amorous relationships. In another case, this time heard in England, two gay men who “kissed and cuddled” late at night, in public, in the center of London, are arrested and subsequently found guilty of a public order offense.
In these, and in numerous other cases that do not explicitly involve kissing, the law is called upon to address the appropriateness of intimate erotic acts occurring in public and quasi-public spaces. Under even the most generous of interpretations, contemporary lawyers cannot be said, either by training or profession, to be well versed in addressing questions of intimacy and eroticism in the construction of the public world. It is perhaps for this reason that the legal response to such acts of intimacy has generally been couched in negative terms. Whether phrased as questions of public order, of zoning requirements, obscenity, civil rights, or University or American Association of Law Schools Statements of Good Practices, the classic legal response to intimate erotic acts in the public sphere has been to define a class of prohibited or offensive and hence illegitimate acts. The trajectory of this response is that of a logic of exclusion. Certain classes of erotic acts, caresses or kisses for instance, are banned from certain parts of the institution and the public sphere. Intimacy and eroticism are thereby consigned to the private domain. By this I mean that tradition-ally the law has not sought to understand the place or role of eros and intimacy in the institutional and other relationships that make up our public world, but rather has endeavored simply to repress those acts that it deems either offensive or best confined to a legally defined private sphere.
Using the example of cases concerned with kissing, I will argue in this Essay that we need to know more rather than less about the role of intimacy and of the expression of desire in the public realm. There are two reasons for this. The first is loosely Freudian. To deny or ban what are deemed to be extreme expressions of intimacy, or passionate erotic acts, is repressive in a dual sense. In Freudian terms, prohibition not only excludes but also denies. To deny is to refuse to acknowledge the existence of an actor emotion that will likely thereafter reappear in distorted or perverse forms. According to this logic, the law governing the intimacies of the pub-lic world would be more relevant and effective in relation to those that it regulated if it addressed the emotional substance of the behaviors governed. The second reason is more scholarly than practical. A number of movements within contemporary legal scholarship, ranging from feminist jurisprudence and queer theory to law and literature and therapeutic jurisprudence, have attempted to challenge the arbitrary character of the archaic division between public and private realms. Drawing upon a wide range of disciplines external to law, an attempt has been made to address the inevitable interlacing of the public and private, the affective and rational, the emotional and legal domains. In this Essay I will draw upon aspects of that interdisciplinary literature and try to evidence the role that it might play in reformulating the procedures and the rules by means ofwhich law exercises its jurisdiction over the amorous passions.
In Part 1, using transcripts from the case, as well as published accounts, I will rehearse the arguments made in Beckelman v. Gallop. In Part 2, I will subject both the outcome of that case and the method of determination to criticism. Comparing the decision in that case to the English case of Masterson v. Holden, I will argue that there are serious flaws in the concept of law and the practice of adjudication at play in those decisions. Drawing upon the traditions of religious or spiritual law, and also upon the literary institution of laws of love, in Part 3 of the Essay I will show that there is ample material within the history of law from which to devise and develop a more coherent and positive account of the affective dimension of public relationships, and even a law of kissing. Most importantly the western tradition of love was founded precisely upon codes of amour lointain or distant love whose object was that of recognizing the power of illicit attraction or impossible desires, and of endeavoring both to honor and to regulate their public expression.
I will argue in conclusion that the protocols and passions associated with kissing are integral to public life. They are the visible surface of a libidinal economy that law ignores or denies at its peril. At the same time, however, the history of legal cultures can provide a more positive project, that of acknowledging and mapping the domains of desire, or sites of erotic intimacy, within contemporary institutions. By this I mean no more than that the plural history of law, the history of other jurisdictions and of comparative legal institutions, can offer important insights into the possibilities that are raised by the recognition and acknowledgment of the erotic dimensions of institutional relationships and of their crucial role in the construction of the public world. Drawing again upon the history of the western erotic tradition, the carte de tendre or map of the heart, the seventeenth century attempt to codify the place of love within the public world, offers a valuable model for the recognition of attraction and desire within institutional spaces.
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