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Italy's Supreme Court recently overturned a rape conviction on the grounds that the woman was wearing blue jeans at the time. The Court reasoned that blue jeans cannot be removed "without the active cooperation of the person who is wearing them," and therefore sexual intercourse must have been consensual. The decision was met with outrage by media commentators, political leaders, and ordinary Italians in a range of civic organizations. I argue here that this case and others like it are conspicuously inconsistent with a constitutive perspective that sees law and everyday normative orders as mutually embedded, or at least reciprocally reinforcing, and that focuses on law's hegemonic potential. In this revisiting of the constitutive approach, I propose that the concept of legal hegemony be elaborated to include the counterintuitive possibility that law can sabotage the very ideologies it invokes. For when an authoritative source such as law is so out of step with the evolving normative order, the shocking discrepancy exposes not only the fallibility of law but also the foolishness of the outdated moral vision it is caught endorsing. Finally, I suggest that it may be during "unsettled cultural periods" (Swidler 1986) that such "de-constitutive" moments are most likely.
Introduction
On 10 February 1999, Italy's highest court of appeals overturned the conviction of a driving instructor who had allegedly raped his 18-year-old student (Cassazione Penale 1999:2194-96). The Corte di Cassazione reasoned that the young woman was wearing blue jeans at the time, so the sexual intercourse must have been consensual. The Justices proclaimed, "It is impossible to take off jeans ... without the active cooperation of the person wearing them" (Cass. 1999:2195). The decision set off a wave of protest across the political spectrum in Italy and around the world. Alessandra Mussolini, deputy of the right-wing National Alliance Party and granddaughter of former dictator Benito Mussolini, expressed outrage at the decision and organized a rally of female legislators-all symbolically clad in blue jeans (II Messaggero 1999a1; Guarnieri 1999). Left-leaning Prime Minister Massimo D'Alema went on record as "in solidarity" with the protestors (Guarnieri 1999).
A vast literature addressing the constitutive power of law has recently emerged among law and society scholars (Yngvesson 1988, 1993; Simon 1988; Starr & Collier 1989; Hunt 1993; Sarat...