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Summary Legal Philosophy: Study Unit 7
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An extensive and elaborate summary of study unit 7 for Legal Philosophy 371.
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7. GAY AND LESBIAN THEORYEssentialist vs. Constructionist Debate [pg. 333]
Essentialism: Homosexuality as innate to some individuals.
Constructionist: Homosexuality as cultural product.
Modernist vs. postmodernist discourses
o Constructionist is the more accepted theory.
Constructionist is the more accepted theory
Michel Foucault – The History of Sexuality Volume 1
o Although same-sex acts were condemned in both religious and civil law
before 1870, they were regarded temptations to which anyone might
succumb to.
The idea of homosexuality as an identifiable characteristic of a person only
recently developed.
Sinful and illegal – akin to stealing a horse or committing adultery.
o These acts were not understood to constitute a certain kind of person.
o It did not reveal an essential truth about a person.
Distinction between homosexual behaviour which is omnipresent, and
homosexual identity which evolves under specific historic conditions.
o This understanding breaks down the hierarchy of the distinctions.
o Homosexual acts have existed throughout history, in all types of
societies, among all social classes and peoples.
However, there have been huge differences in the ways in which
various societies have regarded same-sex sexual desire, the
meanings they have attached to it, and those who were
engaged in homosexual activity viewed themselves.
Example of Naïve American culture pg. 334
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