The publication of this new translation of Towards a Gay Communism represents for English readers the first opportunity to read Mario Mieli’s 1977 classic, Elementi di critica omosessuale, in unabridged form. [1] Evan Calder Williams has returned to David Fernbach’s first English translation, but also translated “chapters and chunks” excluded from Fernbach’s version, which was first published by Gay Men’s Press in 1980. [2] Williams himself describes the result as “a fusion of [Fernbach’s] and my approaches not only to trying to translate this incendiary and brilliant text, but also more generally to the questions and concerns given such unmistakable force, lucidity, and humour throughout it”. [3]
The joint translation is timely for English-speaking queer and trans communities. Mieli could be a touchstone for making sense of–and confronting–the aestheticized and spectacular acts of pinkwashing through which banks and businesses signal support for gender and sexual diversity where they stand to profit. Similarly, Mieli could assist with conceptualizing and critiquing political actors and states that exploit their relationships with queer and trans communities in order to shore up new consolidations of state power at home or abroad. [4] But Mieli not only contributes to queer theory. He also contributes to Marxist social and political thought–and (or so I think) Marxist legal theory. This review is an attempt to demonstrate the significance of this text for Marxist legal theory. I argue that Mieli’s application of Marxist and psychoanalytical concepts enable the reader to sense the emergence and operation of legal forms without fetishizing the state.
Formal and Real Domination
Mieli does not offer a theory of law. However, after his comments on hetero-patriarchal capitalist societies and preconditions for communism wash over you, there is an implicit remainder that, if you are looking for it, might be excavated and rehabilitated to conceptualize the legal form. By carrying out such a reconstruction, it appears that, for Mieli, the legal form is not fully realized in positive legal texts. The legal form is instead produced in social encounters that are spatially dispersed and mediated through the body. Such encounters are enacted not only at sites of legislative assemblies and courts (and mediated by formal texts of statutes and opinions), but also through the socio-legal acts of everyday people, which give effect to domination within society.
Mieli distinguishes between formal and real domination. Formal domination involves state actions located at–and emanating from–legislative, administrative, and judicial sites, intervening directly in relations of production. Formal domination gives effect to a mode of subsuming labour that does not fundamentally alter the activities constitutive of relations of production; instead, these interventions commodify the output of labour in the production of surplus value. Real domination, which Mieli argues capitalist societies increasingly move toward, is redistributed away from centralized state apparatuses; it is the product of dispersed social action derived from and constitutive of capitalist forms. To disperse apparatuses of social control while maintaining the production of capital necessitates a transformation of social life–an internalization of the “‘material community’ of capital itself” that not only regulates, but also reconstitutes social forms according to capital’s “tautological network of accumulation and reproduction”. [5]
Formal and real domination are contiguous with Karl Marx’s concepts of formal and real subsumption, in the sense that the definitions provided above derive significantly from Marx’s descriptions of the “formal subsumption of labour to capital” and the “real subsumption of labour to capital” in volume one of Capital. [6] However, Mieli relies upon Jacques Camatte’s subtle yet critical shift from subsumption to domination in order to emphasize the ways in which this process of subsumption can leak out of sites typically associated with labour into other aspects of social life. This is “the completion of capital subsumption” for Camatte, which Mieli takes up in his description of the regulation of sexuality under formal and real domination. [7]
For Mieli, capital’s “material community” is made concrete in the individual as “the Law” [8], which is felt and experienced through the body as socially mediated psychoanalytic imperatives, shaping our relations with others and our understanding of ourselves, preserving the capitalist organization of social life. He thereby traces how domination, and the legal form responsible for its instantiation, is transformed into a psychologized force, analyzed through Sigmund Freud’s concepts of id (the invisible, subconscious drive), the superego (the Law constraining legitimate social conduct and expression), and the ego (the visible, realized self, formed in relation to the id and superego).
The legal form–which must, for Mieli, exist ontologically as an imperative of the superego produced in a constellation of social encounters–is experienced phenomenologically, irrespective of whether those encounters are mediated by text (e.g. a legislative text, by-law, or ticket), the built space (e.g. a public toilet, a ghetto), or corporeal practice (e.g. the haptic experience of an officer’s cudgel, the sting of shame). In cases of real domination, these encounters often involve everyday people–or, as Mieli affectionately refers to them, “hustlers” and “cop[s] of the hetero-capitalist system”, whose reproduction and enforcement of the Law may variably include ridicule, exposure, exclusion or the kiss of a fist. Mieli also emphasizes that these encounters entail the social production of space, inasmuch as they are mediated by bodies arranged in space and bodies enacting social order in spatially organized representations and practices. As Mieli observes, it is in this way that Western jurisdictions have repealed formal prohibitions of homosexuality. But such repeals were not straightforward outcrops of corresponding increases in tolerance or freedom. Instead, they were concurrent with new modes of domination and control, removed from the formal state, which still preserved capitalist social formations. The role of the state might diminish in late capitalist society, and yet imperatives toward heterosexuality and related social formations persist in the embodied and spatial configurations of social encounters, which demonstrates the transformation of the legal form rather than its loss irrespective of the prominence of the state.
Mieli does not develop his argument about space to the length or complexity of Henri Lefebvre, but Mieli repeatedly comments upon the way the Law is inscribed in space through bodies, consistent with Henri Lefebvre’s La Production de l’espace. [9] Relations of domination are sedimented in the social production of space, shoring up zones that constrain or release, and displace or hold objects, establishing an urban landscape that, in its spatial configuration, permits, authorizes, or prohibits certain acts. In this way, the legal form may be experienced in the organization of space, informing behaviour without an immediate and obvious human agent of enforcement. This spatial distribution of domination also distinguishes real instances of domination from formal ones, suggesting a radically different configuration of bodies and spaces in service of capital.
In attending to the spatial distribution of real domination, Mieli argues that the body, specifically the body positioned in space and the body as space, is central to mediating the phenomenological experience of legal forms. In terms of bodies in space, Mieli describes the Law’s psychoanalytic imperatives that regulate and transform sexual life, finding expression in the spatial organization of public toilets, parks, and discotheques in which queer sexuality is conditioned. Such spaces come to be inseparable from the transgressive bodies believed to exist within them, so that the categories of “homosexual” and “prohibited” are inscribed together in urban space. The construction of such spaces as homosexual reflects and reinforces dominant, heterosexual social formations by enabling the psychoanalytic imperatives conducive to a heterosexuality imbricated in the production of capital (e.g. the family unit)–much like the notion of heterosexual or Lawful space (e.g. the suburban neighbourhood, the freeway, and the skyscraper)–to form the negative image of the homosexual.
In terms of the body as space, these same imperatives alienate the individual from compassionate relations with others. These imperatives entail the alienation of the id, particularly the alienation of an innate “transsexual” id entangled in loving relations with others. [10] This alienation involves a reorganization or transformation of an embodied psyche in the production of the individualized ego. Mieli suggests that it is this alienation that precludes communism, anticipating his argument that the legal form must be addressed through revolutionary action prior to addressing constraints more commonly recognized as economic in nature.
The transformation of the legal form under conditions of real domination, in the sense of a shift toward a socially mediated psychoanalytic imperative, entails a distinct form of alienation from formal domination. As noted above, it is not necessary, on Mieli’s account, for formal domination to transform labour activities provided that it can alienate and commodify the product of labour (or social life more generally). Formal domination may prohibit certain public forms of sexuality–in this formulation viewed as the output of social life–that interfere with state-defined stakes, particularly the accumulation of capital. But it does not require transformation of social formations that occur in private, to the extent that they remain invisible to or inconsequential for the state. This may allow the innate “transsexual” id, our libidinal Eros, to find expression in a greater plurality of spaces, though admittedly still in a limited sense. By contrast, the alienation involved in real domination penetrates deeper, necessitating an internalization of the Law irrespective of where it takes place. Mieli has this in mind when he contends that freedom is lost with the liberalization of a legal system, in that the legal form responsible for alienation must be effective with a shrunken state apparatus.
Formal and real domination can coexist in different configurations in different spaces and at different times. While late capitalist societies increasingly rely upon real domination as centralized state apparatuses diminish, formal domination continues to play a role, albeit a reduced one–and the state itself increasingly takes on the role of servicing, or administering, real domination. While Mieli does not discuss the latter shift, Michel Foucault anticipated a similar move from sovereignty to governmentality as the principal mode of state power, with the latter relying on persons internalizing norms for social life. [11] Similarly, Mieli discusses state and non-state actors as controlling sexual forms on conjunction, although he emphasizes the latter. This suggests that his theorization might not depend upon such a strict separation between formal and real domination, and may indeed anticipate the state’s adaptation to real forms of domination. The parallel contributions of state and non-state actors to his legal theory becomes clearer as we consider Mieli’s application of sublimation and repressive desublimation, which I discuss below.
Sublimation and Repressive Desublimation
Thus far I have argued that Mieli’s work relies upon an implicit legal theory, which can be excavated and rehabilitated from his application of formal and real domination. My reconstruction attends to the psychoanalytic geography I see Mieli using to analyze the regulation of sexuality. By means of this psychoanalytic geography, Mieli describes social topographies that reflect, in their spatial configurations, real domination. For example, Mieli refers to the spatial organization of public toilets, parks, and discotheques in urban space, as both a consequence and as an example of instances of real domination. With such examples, Mieli anticipates Leslie Moran’s legal cartography of police beats in mid-century London. Moran describes the ways in which undercover police in public toilets shaped the production of abject zones and defined homosexuality as a form of transgressing the social order imagined by the police beat. [12]
However, unlike Moran, Mieli emphasizes that the resulting social organization was a consequence of the socio-legal acts of everyday people, not predominantly police officers. His insistence that late capitalist society increasingly assumed institutions of real domination, and a corresponding loss of formal domination, suggests that the regulation of sexuality obtained a central, ontological status in society, mediated by people’s internalization of the legal form as a psychoanalytic imperative. For the everyday “hustlers” and “cop[s] of the hetero-capitalist system” to participate in the production of topographies of real domination requires the internalization of this abjection–the formation of the heterosexual as the negation of the prohibited or un-Lawful homosexual. This, for Mieli, cannot be explained fully by reference to the state. The legal form may exist apart from institutions of formal domination, which the police play a critical role in enacting, and priority should be given to the proliferation of real domination that pervades everyday socio-legal acts. The police beat, for Mieli, would become a constituent part of producing the Law, but would not be sufficient to explain how the legal categories of “homosexual” and “prohibited” are inscribed together in urban space.
Important to understanding the inscription of formal and real domination in urban space, and Mieli’s legal theory, are concepts of sublimation and repressive desublimation. Sublimation and repressive desublimation allow our impulses toward prohibited behaviour to find expression elsewhere. The dislocation of the prohibited impulse also entails its transformation, albeit with different outcomes under sublimation as opposed to repressive desublimation, which assumes a central role as a society comes to prioritize real domination. In the case of sexuality, a central figure for Mieli’s application of sublimation and repressive desublimation is homo normalis. Mieli takes the term from Wilhelm Reich but uses it to name an adaptation of Herbert Marcuse’s “one dimensional man”, whose latent sexual queerness is denied under the structuring conditions of capitalist society. [13] Mieli refers to this queerness as an innate “transsexuality”, and the multiplicity of gender and sexual expressions this entails are suppressed and concealed in processes of sublimation and repressive desublimation. The homo normalis’ sexuality services the advancement of the production of capital.
In the case of sublimation, homo normalis involves the transfer of the “transsexual” id, or the impulse toward queer sexualities into a productive, positively evaluated social form. Mieli offers friendship between men, sport, and national identity as examples of the sublimation of queer sexuality. These are examples of sublimation for Mieli in the sense that they produce social formations of heterosexual kinship or other bonds, with which the transgressive sexuality at its root is alienated and transformed to further the production of capital. From the perspective of a reconstructed legal theory, sublimation underlies the enactment of permissions to transgress bounded, individualized egos, while subtending hetero-patriarchical capitalist society. Mieli does not discuss it as such, but marriage contracts, and contracts more generally, might be examples of such permissions to transgress the presumed separation of individuals under conditions serviceable to the production of capital. Similarly, national identity, which Mieli does discuss, might be incorporated into our reconstructed legal theory, to the extent that national identity buttresses the “‘material community’ of capital itself” [14], such as in the production of sovereignty, constitutional norms, or sanctioned discrimination based upon race, gender, or other categories conducive to the formation of community. Important for this conceptualization is that the permission to transgress, also entails the permission to exclude, such as in legal enactments of appropriation. This leads Mieli to suggest that the transformation of the “transsexual” id underlies the production of social forms that serve hetero-patriarchal capitalist society.
Repressive desublimation also permits the transgression of bounded, individualized egos, but transforms the “transsexual” id into a form that, while not evidently productive, is nonetheless alienating and subsumed by capital. Repressive desublimation is exemplified by homosexuality proper, which remains socially devalued socially and therefore prohibited outside spaces in which homosexuals are tolerated. The partial inclusion of the “transsexual” id as the homosexual form enables its expression without impeding the production of capital. This is achieved principally by constraining the impulse to queer sexuality to a “monosexual” form, in the sense of exclusive preference for a sexual partner of the same gender, against which heterosexuality is defined as its direct negation, in the sense of exclusive preference for a sexual partner of the opposite gender. The monosexual forms of heterosexuality and homosexuality are mirrors of each other, which allows the Law to police the boundaries of legitimate sexual and gender performance of heterosexuals, often expressed through disgust and fear, while concretizing the identity of the homosexual. This monosexual homology limits possible sexual and gender identities, denying the possibility of fluid, contingent sexual and gender performance. Although Mieli only speculates about the outcome at the time of writing, this monosexual homology has progressed so far in some jurisdictions that homosexuals have been relocated from ghettos to social formations typically associated with heterosexuality (e.g. marriage). This is conducive to the production of capital, sometimes more so even than heterosexuality (i.e. “dual income, no kids”).
By contrast, “transsexuality” outside repressive desublimation explodes our sexually mediated relations to one another, and resulting attachments as a community. A genuinely equal, communist society depends upon the “transform[ation] [of] monosexuality into an Eros that is genuinely polymorphous and multiple”. [15] At the time of Mieli’s writing, a “transsexual” society would entail the dissolution of the spatial organization of the public toilet, park, and discotheque, for example. Relatedly, a “transsexual” society would challenge marriage rights afforded in some jurisdictions and sought transnationally by human rights groups, at least to the extent that such attachments produce rigid, monogamous family units upon which capital relies for its reproduction.
Sublimation and repressive desublimation provide conceptual language through which we can understand the constraint imposed by the Law, and its transformation under different historical conditions. Both processes authorize or permit social action, can create and institutionalize obligations to each other, and determine the boundaries of prohibited conduct. Further, for Mieli, they explain how these resulting legal forms erupt from social encounters that originate from an innate “transsexuality” that is worked and reformed, under historical conditions, to give rise to domination. Under the aegis of hetero-patriarchal capitalist society, such domination has produced a monosexual homology that preserves institutions compatible with, and perhaps necessary for, current productions of capital. To the extent that homology is transgressed among the general population, such as in circumstances of sublimation, it is channeled into forms productive of or reinforcing domination favourable to capitalist production. Since sublimation and repressive desublimation emanate from animus toward bodies–they require an id incompatible with a superego–and operate through the regulation and expression of bodies, particularly sexuality and gender, these concepts further highlight the way in which bodies underlie legal forms saturated by real domination. It is in this sense that Mieli refers to such embodied relations as “substructural” to society, prior to base and superstructure.
Mieli calls for a scatological analysis to address the Law’s “substructural” origins. We must embrace our “anal and scatological desires”, which we negate by adopting monosexual homologues. In other words, we must embrace what we have learned, through the Law, to fear and feel guilt about. We must learn to love the sexual freedom of anal sex, straights! And stop douching, gays. And, more to the point, come to challenge the “male supremacist and violent attitude [which obscures our] latent desire that is [queer], anal and scatological” with everybody, irrespective of gender. [16] This call for a radical sexual and gender ethics goes beyond sublimating our latent desire into some “monstrous shit fetish” viable for capital. Instead, it calls for an interrogation of existing imperatives and legal forms governing social relations, and a deliberate effort to configure those openly in order to connect affectionately and reciprocally with others in a communist society. Mieli thus calls for us proletarians to confront our aversions fist-first in shit, prolapsing capital’s walls as we form sensuous communities capable of overcoming the production of capital.
[1] Mario Mieli, Towards a Gay Communism: Elements of Homosexual Critique, trans. David Fernbach and Evan Calder Williams (London: Pluto Press, 2018 [1977]), 108.
[2] Evan Calder Williams, “Translator’s Preface”, in Mieli, Towards a Gay Communism, xxv.
[3] Translator’s Preface, xxv.
[4] See generally Tim McCaskell, Queer Progress: From Homophobia to Homonationalism (Toronto: Between the Lines, 2016).
[5] Translator’s Preface, xxxii.
[6] Translator’s Preface, xxx. See also Karl Marx, Capital: A Critique of Political Economy, vol. 1, trans. Ben Fowkes (Harmondsworth: Penguin, 1976 [1867]), 1026; “The History of Subsumption”, Endnotes 2, available at https://endnotes.org.uk/issues/2/en/endnotes-the-history-of-subsumption.
[7] “History of Subsumption”, fn 21.
[8] Throughout the text I have tried to follow the translators’ example by using the capitalized phrase “the Law” where discussing the psychologized, social norms that come together to govern and regulate behaviour. However, I sometimes refer to “law” without capitalization when referring to law as a general concept.
[9] See Henri Lefebvre, The Production of Space, trans. Donald Nicholson-Smith (Oxford: Blackwell, 1991 [1974]).
[10] Mieli refers to everyone having a “transsexual” id, or internal impulse or drive toward what we might today call “queer desire”. The use of “transsexual” instead of “queer” is dated, and I acknowledge that “transsexual” is often a pejorative, directed toward trans persons to pathologize trans experiences. Despite this fact, I feel compelled to use the same term as Mieli in order to maintain consistency and reduce possible confusion as to what I am referring. I should also note that Tim Dean, in his foreword for the book (at xiii), contextualizes Mieli’s use of “transsexual” as follows:
[F]or Mieli, “‘transexuality’ and communism are one and the same”–a claim that already indicates just how differently he is deploying these terms in Towards a Gay Communism [from contemporary uses]. The prefix trans- means across; by transsexuality Mieli refers to crossing the borders of sexual difference without normative heterosexuality. What motivates that crossing is desire, understood as Eros in the Freudian sense.
[11] See, e.g., Michel Foucault, The History of Sexuality (New York: Vintage, 1990), 135–59; Michel Foucault, “Governmentality”, in Power: Essential Works of Foucault, 1954–1984, vol. 2 (New York: New Press, 2001), 201–22.
[12] See Leslie Moran, “The Gaze of Law: Technologies, Bodies, Representation”, in Ruth Holliday and John Hassard (eds.), Contested Bodies (London: Routledge, 2001), 107.
[13] See Herbert Marcuse, One-Dimensional Man: Studies in the Ideology of Advanced Industrial Society (Boston: Beacon Press, 1964).
[14] Translator’s Preface, xxxii.
[15] Mieli, Towards a Gay Communism, 108.
[16] Mieli, Towards a Gay Communism, 151.
Joshua Shaw is a PhD candidate at Osgoode Hall Law School, York University. He can be reached at JoshuaShaw@osgoode.yorku.ca.
Legal Form 