Be gay, do crime
Living a fulfilling life requires breaking the law
In what has become a queer cliché, I lost my virginity in a public restroom at 16.
Despite the fact that both my partner in crime and I were over the age of consent, and acting discreetly in the dead of night with likely no bystanders, we were still by definition breaking the law.
Speaking of gay perverts, the Greek philosopher Aristotle believed that questioning the rules of society was completely rational and normal. Despite this, he insisted that laws should be followed in their entirety, no matter how unjust. Allow me to convince you otherwise.
When describing the law, Aristotle used the word ‘nomos,’ which has two generally accepted meanings. The first refers to the codified, legally binding and enforceable laws citizens must follow. The second kind of nomos refers to broader social norms that govern our lives in an unwritten fashion.
For instance, it was illegal for Canadians to marry someone of the same sex until 2005. With enough public pressure from activists and a growing consensus among the general population that there was nothing wrong with gay marriage, the prohibition was overturned. This is proof that laws change all the time, aided by fluctuating social norms.
The legislative process is an endless cycle that moves too quickly to be fully understood. On a daily basis, your city councillor passes new measures, your member of provincial parliament sponsors bills, and your federal representative receives foot massages from lobbyists—and also legislates (allegedly).
If laws are constantly changing, does breaking them have any meaning?
For German philosopher Walter Benjamin, the law is less about an elected official signing paperwork in city hall and more about a police officer brandishing his shiny new baton. The enforcement of the law creates a sort of law-making violence solely afforded to officers of the state, rendering citizens powerless when a gun is pointed in their face.
Benjamin argued that if the state wants to jail you because you do not fit the image of a good citizen, the crime can simply be constructed around you. The type of person committing the crime is one of the most significant factors in whether they will be policed and prosecuted. In the United States, there are differences in sentencing for drugs like crack and cocaine: the former is much more accessible to the poor, yet carries a higher prison sentence.
This is but one example of how liberal legal systems of blind justice rapidly devolve into a tiered model along the lines of what theologian Elisabeth Schüssler Fiorenza called kyriarchy. Kyriarchy is the set of interconnected systems of oppression encompassing class, race, gender, disability, sexuality and many others.
If our society is structured by a set of kyriarchal social systems, kyriarchal legal systems logically accompany them. Because the Canadian ruling class makes the laws, its members are given the most leeway when breaking them. This is how the legal system is socially constructed; it enables the actions of the in-group and punishes those on the margins.
But for a system to function effectively, it needs to breathe. This is why not all crimes are reported, but the so-called crimes committed by marginalized people—especially Black and Indigenous people—are overreported and treated with more severity. Injustice is baked into our justice system because if not, it would cease to function at all. The issue then becomes who gets to benefit from being underpoliced: in our case, the disproportionally rich, white and male.
As a kid, a common interview question I noticed being asked of politicians on TV was if they had ever smoked marijuana. Most said yes and laughed it off, despite possession being a crime in their jurisdiction. I don’t think I’ve ever met an adult who waited until 18 to get drunk for the first time. There’s clearly a clash between social norms and the legal order. Those of us who can get away with it do illegal shit all the time.
All people should be allowed some grace in breaking laws that don’t make any damn sense, not only those born into privilege. We cannot forget that the state unfairly targets many because we are designated as undesirable to the social fabric of Western patriarchal capitalist society.
Criminality is not simply an act or status; it’s a social construct defined by those in positions of economic and political power. Be gay, do crime! Fuck the police!
This article originally appeared in Volume 45, Issue 4, published October 22, 2024.
