Journal of the History of Sexuality 13.1 (2004) 26-48
[Access article in PDF]
In the Name of the Law:
The "Female Homosexual" and the Criminal Code in Fin de Siècle Germany
In a sociological study of what he called the juridical "field," sociologist Pierre Bourdieu portrayed law as the quintessential form of the symbolic power of naming that creates the things it names, individuals and social groups in particular. "It confers upon the reality which arises from its classificatory operations the maximum permanence that any social entity has the power to confer upon another," Bourdieu wrote, "the permanence which we attribute to objects." In Bourdieu's schema, law takes on this privileged status because of its claim to universal validity, exceeding the limited social or professional contexts of most utterances. The law claims to speak both for the state that underwrites it and for the individuals that comprise the state. Yet if Bourdieu granted legal language this privileged status in the production and organization of names and categories, he nevertheless insisted that the operations of law are not sui generis. "It would not be excessive," he explained, "to say that [law] creates the social world, but only if we remember that it is this world which first creates the law." That is, categories can be consecrated by law only if they make sense to the historically constituted individuals and social world to which they pertain.1 If language—and especially legal language—carries what Bourdieu referred to as a "quasi-magical" [End Page 26] power of production, in that it can bring about social effects, the process by which legal language itself finds recognizable and thereby legitimate expression happens in anything but magical fashion.2 Rather, according to Bourdieu, legal language comes about as a process of social contestation in which interlocutors bring to an issue a fluid set of professional and nonprofessional practices. As such, "law" and its pretense to universality happen at the negotiated (and often combative) intersection of juridical tradition and social interest.
As a theoretical argument within the sociology of the "juridical field,"3 Bourdieu's study avoids specificity in order to address the operations he understands to define modern Western law quite generally. I want to take a cue from Bourdieu's theoretical observations in order to ask questions of a much more concrete legal event in Wilhelmine Germany, one in which legal definitions were the primary object of social and juridical contestation. Specifically, I will discuss below the controversy around an effort in Germany in 1909 to criminalize female-female sexual relations. The controversy depicts how legal efforts to identify the "female homosexual" as a criminal category exposed the lack of public agreement regarding her physiological, moral, and social constitution.4 The effort appeared as Paragraph [End Page 27] 250 in a much larger Vorentwurf zu einem deutschen Strafgesetzbuch (Proposal for a new German criminal code) and amounted to an extension of the existing Paragraph 175 of the German criminal code. Where Paragraph 175 had criminalized widernatürliche Unzucht (unnatural fornication) between men and between humans and animals, the proposed Paragraph 250 would punish widernatürliche Unzucht between women as well.5 In addition, Paragraph 250 increased the severity of punishment over Paragraph 175: whereas hitherto male homosexuality could result in prison and loss of civil rights, the new paragraph retained those stipulations while adding that a sentence of no less than six months and up to five years of jail would be mandatory.6
Commissioned by the government, the 1909 Vorentwurf was intended to be publicly debated and, after revision, adopted to replace the Prussian-dominated criminal code of 1871. It appeared within an atmosphere of very broad efforts at legal reform that were spreading across Europe.7 While never adopted (due in large part to the interruption of the war), the Vorentwurf nevertheless elicited considerable controversy upon publication in much the same fashion that the first draft of the German civil code had done...