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Blue Jeans, Rape, and the "De-Constitutive" Power of Law

NCJ Number
Law & Society Review Volume: 35 Issue: 1 Dated: 2001 Pages: 89-116
Kitty Calavita
Date Published
28 pages
This article uses a judicial decision in a rape case in Italy to re-examine both legal hegemony and the nature of the resistance it evokes.
Italy's Supreme Court recently overturned a rape conviction on the grounds that the woman was wearing blue jeans at the time of the alleged rape. The Court reasoned that blue jeans cannot be removed "without the active cooperation of the person who is wearing them;" therefore, sexual intercourse must have been consensual. The decision was met with outrage by media commentators, political leaders, and ordinary Italians in a range of civic organizations. This article argues that this case and others like it are conspicuously inconsistent with a constitutive perspective that views law and everyday normative orders as mutually embedded, or at least reciprocally reinforcing, and that focuses on law's hegemonic potential. In this revisiting of the constitutive approach, the author proposes that the concept of legal hegemony be expanded to include the counterintuitive possibility that law can sabotage the very ideologies it invokes. When an authoritative source such as law is so out of step with the evolving normative order, the shocking discrepancy exposes not only the fallibility of law but also the foolishness of the outdated moral vision it is caught endorsing. The author suggests that it may be during "unsettled cultural periods" (Swidler 1986) that such "de-constitutive" moments are most likely. 122 references


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