Transgender Freedom and the Law: A Liberal-Poststructural Discussion on McNally

In R v McNally, gender deception is found capable of leading to the vitiation of consent to sexual intercourse and, in so doing, places restriction on the freedom of transgendered individuals in favour of cisgendered freedom. This paper seeks to challenge the standing of this decision by adopting a combined methodological approach between Deleuzian post-structuralism and Gewirthian legal idealism. In so doing, we attempt to show that the combination offers a novel and productive approach to contentious decisions, such as that in McNally. Our approach brings together post-structuralist corporeality which conceives of the body as material and productive, and Gewirth’s ‘agent’ to conceptualise the legal body as an entity which can, and should, shape judicial reasoning. It does this by employing the criterion of categorically necessary freedom on institutionalised practical reasoning. These ‘bodies of agents’ can be conceived as the underpinning and justificatory basis for the authority of the law subject to the morally rational Principle of Generic Consistency. This egalitarian condition precedent requires individualisation and the ability to accept self-differentiation in order to return to a status, which can be validly described as “law”. Ultimately, we argue that this theoretical combination responds to a call to problematise the connection made between gender discourse and judicial reasoning, whilst offering the opportunity to further our conceptions of law and broaden the theoretical armoury with which to challenge judicial reasoning in McNally. That is, a ‘good faith’ attempt to further and guarantee transgender freedoms.

Logics of generalization: Derrida, grammatology and transdisciplinarity

This article seeks to explore some issues regarding the different modes of generality at stake in the formation of transdisciplinary concepts within the production of ‘theory’ in the humanities and social sciences. Focused around Jacques Derrida’s seminal account of ‘writing’ in his 1967 book Of Grammatology, the article outlines what it defines as a logic of generalization at stake in Derrida’s elaborations of a quasi-transcendental ‘inscription in general’. Starting out from the questions thereby raised about the relationship between such forms of generality and those historically ascribed to philosophy, the article concludes by contrasting Derrida’s generalized writing with more recent returns to ‘metaphysics’ in the work of Bruno Latour and others. Against the immediately ‘ontological’ orientation of much recent ‘new materialist’ or ‘object-oriented’ thought, the article argues for the necessity of ‘different levels of writing in general’ through a continual folding back of absolute generalization into historically specific disciplinary crossings and exchanges; something suggested by but never really developed in Derrida’s own work.